Jack v Chief Executive Officer

Northern Territory Civil and Administrative Tribunal Act 2014 (NT) s 28, s 64, s 67, s 99A

Northern Territory National Emergency Response Act 2007 (Cth) s 31

Northern Territory (Self-Government) Act 1978 (Cth) s 5

Supreme Court Rules 1987 (NT) r 9.06

A-G (NSW) v Brewery Employés Union of New South Wales [1908] HCA 94; (1908) 6 CLR 469, Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59; (1998) 195 CLR 566, Bolwell v Australian Telecommunications Commission (1982) 61 FLR 154, Bradken Consolidated Ltd v Broken Hill Pty Co Ltd [1979] HCA 15; (1979) 145 CLR 107, Cavanagh v Chief Executive Officer (Housing) (2018) 345 FLR 55, Colonial Mutual Life Assurance Society Limited v The Producers and Citizens Co-operative Assurance Company of Australia Limited [1931] HCA 53; (1931) 46 CLR 41, Inglis v Commonwealth Trading Bank of Australia [1969] HCA 44; (1969) 119 CLR 334, International Harvester Company of Australia Proprietary Limited v Carrigan's Hazeldene Pastoral Company [1958] HCA 16; (1958) 100 CLR 644, Mandahan v Toyota Finance Australia Ltd (No 2) [2020] FCA 3, Metropolitan Water, Sewerage and Drainage Board (NSW) v Fisher [1980] FCA 146; (1980) 33 ALR 173, Palgo Holdings Pty Ltd v Gowans [2005] HCA 28; (2005) 221 CLR 249, R v Kearney; Ex parte Japanangka [1984] HCA 13; (1984) 158 CLR 395, Ventana Pty Ltd v Federal Airports Corporation (1997) 95 LGERA 58, referred to.

GE Dal Pont, Law of Agency, 2nd Ed (2008) LexisNexis Butterworths Australia

Hogg PW, Liability of the Crown (2nd ed, Sydney: LBC, 1989)

CIVIL PROCEDURE - Jurisdiction - Stay of proceedings - Inherent jurisdiction - Abuse of process

Power to stay for abuse of process should only be used sparingly - Categories of abuse of process not closed - Oppressive for a defendant to be faced with proceedings in different jurisdictions seeking the same relief - Impairs administration of justice to commence parallel proceedings in original jurisdiction of Supreme Court in relation to a matter initiated and pendent in a different forum - Contrary to statutory scheme governing residential tenancies for proceedings to be commenced in original jurisdiction of the Supreme Court - Proceedings permanently stayed.

Residential Tenancies Act 1999 (NT) s 48, s 122

Administration of Territory of Papua and New Guinea v Guba (1973) 130 CLR 353, AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, Commissioner of State Revenue (Vic) v Mondous [2018] VSCA 185; (2018) 55 VR 643, Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421, Housing Trust (SA) v State Government Insurance Commission (1989) 51 SASR 1, Hunter v Chief Constable of West Midlands Police [1981] UKHL 13; [1982] AC 529, Josephson v Walker [1914] HCA 68; (1914) 18 CLR 691, Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441, Pagliotti v Hartner [2009] FamCAFC 18; (2009) 223 FLR 121, Re Gasbourne Pty Ltd [1984] VicRp 70; [1984] VR 801, Saffron v Commissioner of Taxation [1991] FCA 363; (1991) 30 FCR 578, Stergiou v McGrail (Unreported, FCAFC, Burchett, Ryan and Gummow JJ, G 99 of 1993, 22 April 1994), TJM Products Pty Ltd v A & P Tyres Pty Ltd (1987) 17 FCR 390, Tomlinson v Ramsey Food-Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507, Walton v Gardiner (1993) 177 CLR 378, referred to.

Northern Territory of Australia: Solicitor for the Northern Territory

Jack v Chief Executive Officer (Housing) (No 2) [2021] NTSC 81

• [1] There are two interlocutory applications before the Court. They are:

(a) an application by the defendant (CEO) filed on 18 December 2020 seeking, in the alternative, summary judgment, a permanent stay or a strikeout of the Statement of Claim;

(b) an application by the plaintiff (Jack) filed on 19 March 2021 for an order joining the Northern Territory of Australia (Territory) as the second defendant to the proceeding, together with leave to file an amended Writ and Statement of Claim and other orders consequential on that joinder.

• [2] In or about 2010, Jack became a tenant of the premises at Lot 22, Laramba in the Northern Territory of Australia (premises). Laramba is a small town approximately 200 kilometres by road north-west of Alice Springs in the Central Desert Region. It has a population of approximately 300 people, nearly all of whom are of Aboriginal descent. Jack occupies the premises pursuant to a residential tenancy with the CEO as landlord.
• [3] On 14 November 2019, a person purporting to be a tenant of the premises filed an initiating application under the Residential Tenancies Act 1999 (NT) in the Northern Territory Civil and Administrative Tribunal (Tribunal). That application alleged 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 s 48(1) of the Residential Tenancies Act. That section provides:

It is a term of a tenancy agreement that the landlord must ensure that the premises and ancillary property to which the agreement relates:

(b) meet all health and safety requirements specified under an Act that apply to residential premises or the ancillary property; and

(c) are reasonably clean when the tenant enters into occupation of the premises.

• [4] The CEO was named as the respondent to that application. The relief sought by that application included the payment of compensation pursuant to s 122 of the Residential Tenancies Act for loss and damage suffered because the landlord 'has failed to comply with the [tenancy] agreement or an obligation under this Act relating to the tenancy agreement'.
• [5] The application also sought an order requiring the CEO to install a system or filter at the premises to reduce the amount of uranium in the water emanating from at least one tap in the kitchen to a level below the maximum safe drinking level set by the Australian Drinking Water Guidelines. That relief was sought pursuant to the general powers of the Tribunal to make any alternative or ancillary order it considers appropriate under s 64 or 67 of the Northern Territory Civil and Administrative Tribunal Act 2014 (NT). The CEO disputed, inter alia, that the Tribunal has jurisdiction to grant relief in the nature of injunctive relief in the context of an application pursuant to the Residential Tenancies Act.
• [6] On 20 March 2020, Jack was substituted as the applicant in the Tribunal proceedings. That substitution was made on the basis that Jack was the tenant of the premises and the proper applicant.
• [7] On 1 July 2020, the Tribunal delivered reasons on a number of preliminary issues arising on the application. One of the Tribunal's findings was, in effect, that the CEO 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 basis 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 CEO. On the Tribunal's reasoning, the CEO 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 in the premises.
• [8] It would seem relatively uncontroversial, at least for the purpose of these applications, that the water is supplied to the premises by the Power and Water Corporation, through a wholly-owned subsidiary, pursuant to its statutory functions under the Power and Water Corporation Act. It is also relatively uncontroversial, or at least not expressly disputed, that there is no contractual or other financial relationship between Jack and the Corporation, or its subsidiary, in relation to the supply of that water.
• [9] On 27 July 2020, Jack commenced proceedings in the Tribunal seeking an internal review of the findings made on 1 July 2020.
• [10] On 13 October 2020, the President of the 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. In broad terms, those questions were whether the term implied by s 48(1) of the Residential Tenancies Act requires the defendant to ensure that the water supplied to the premises is safe for drinking, and, in particular, does not contain levels of uranium that are unsafe for drinking.
• [11] On 19 October 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 listed before the Court of Appeal in the matter of Conway, which involved, inter alia, a question concerning the proper construction of s 48(1) of the Residential Tenancies Act. The parties to that appeal were the CEO and the tenants of premises in the community of Santa Teresa. The same legal representatives acted for the tenants and landlord respectively in the two sets of proceedings before the Tribunal, the appeal from the decision in Conway to the Supreme Court and the subsequent appeal to the Court of Appeal, the reference to the Supreme Court and the subsequent reference to the Full Court in relation to the premises, and the within proceedings subsequently commenced in the Supreme Court.
• [12] Jack commenced these proceedings against the CEO by Writ filed on 30 November 2020. The proceedings seek a permanent injunction, a declaration of right and compensation. At that same time, Jack filed a summons seeking an interlocutory injunction pending the resolution of the substantive proceedings. Although not pleaded or sought in the summons, in written submissions subsequently filed Jack sought, in the alternative, relief in the nature of mandamus on an interlocutory basis. The application for interlocutory relief was heard and refused on 11 January 2021.
• [13] The commencement of these proceedings in the Supreme Court was said by counsel for Jack to be primarily in response to the CEO's contention that the Tribunal has no jurisdiction to order relief in the nature of injunctive relief. It was further submitted that the proceedings are within the jurisdiction of the Supreme Court because Jack seeks injunctive relief against an officer of the Territory in proceedings arising under a law in force in the Territory within the meaning of s 14(1)(d) of the Supreme Court Act.
• [14] On 18 December 2020, the CEO filed the summons seeking summary judgment, a permanent stay of proceedings or the striking out of the Statement of Claim and a temporary stay until such time as the Full Court determined the reference. The principal bases for that application are the contention that the plaintiff is estopped from bringing proceedings in relation to an issue which has already been determined by the Tribunal, and which is the subject of a pending internal review in the Tribunal and a consequential reference to this Court; and/or the contention that it is an abuse of process to make a claim based on an issue raised and determined in an earlier proceeding and in respect of which simultaneous review or appeal proceedings remain on foot.
• [15] On 19 March 2021, Jack filed the summons seeking an order for the joinder of the Territory as a party to the proceedings and consequential relief. It is convenient to deal first with that application for joinder.

• [16] Rule 9.06(b)(i) of the Supreme Court Rules 1987 (NT) relevantly provides:

At any stage of a proceeding the Court may order that:

(b) any of the following persons be added as a party:

(i) a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated on; or

(ii) a person between whom and a party to the proceeding there may exist a question arising out of, or relating to or connected with, a claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding; or

• [17] This rule has been described as a remedial provision which is designed to enable parties to litigate the real issues between them in an expeditious, effective and cost efficient way. As such, it should be given a broad beneficial interpretation. However, it is necessary for the applicant for joinder to establish a good arguable case for relief against the party sought to the joined as a defendant to proceedings.[1] The discretion is not properly exercised in favour of an applicant where the purported claim is tenuous in nature.
• [18] In their relevant operation, ss 48(1) and 122 of the Residential Tenancies Act are directed to a 'landlord'. Section 4 of the Residential Tenancies Act defines 'landlord' to mean:

(a) the person who grants the right of occupancy under a tenancy agreement; or

(b) a successor in title to the tenanted premises whose title is subject to the tenant's interest,

(c) a prospective landlord or a former landlord; and

(d) an agent of the landlord, prospective landlord or former landlord.

• [19] The affidavit filed on behalf of Jack in the joinder application deposes to the following matters:

(a) on 8 September 2010 Jack entered into a residential tenancy agreement in respect of the premises in Panel Form R1 - Ags 31 (Panel Form) which incorporated the terms and conditions contained in the Remote Public Housing Tenancy Rules (Tenancy Rules);

(b) cl 1 of the Tenancy Rules defines 'Landlord' as '[t]he Landlord specified in the Tenancy Agreement', and defines 'Tenancy Agreement' as '[t]he panel form setting out the details of the Tenancy between the Landlord and the Tenant';

(c) the Panel Form describes the 'Landlord' as '[t]he Commonwealth of Australia represented by the Department of Families, Housing, Community Services and Indigenous Affairs ("the Commonwealth")' and '[t]o the extent that the context permits, a reference in this agreement to the Landlord includes Department of Housing, Local Government and Regional Services on behalf of the Commonwealth';

(d) the Panel Form describes the 'Address' of the Landlord as 'Department of Housing, Local Government and Regional Services (DLGHRS), RCG Building 83-85 Smith Street Darwin NT 0800'; and

(e) the Department now holding the same responsibilities and oversight as the former Department of Housing, Local Government and Regional Services is the Department of Territory Families, Housing and Communities.

• [20] On the basis of those matters, Jack contends that the Territory was either the party which granted him the right of occupancy or that party's agent. The proposed Amended Statement of Claim, after pleading that the CEO is and has been at all relevant times the landlord of the premises and is an officer of the Territory, pleads the relevant allegation in the following terms:

Further or alternatively, the Northern Territory (the Second Defendant), through the department responsible for the administration of the Residential Tenancies Act 1999 (NT) is and has been at all relevant times the landlord of the Premises.

Residential Tenancies Act 1999 (NT), 'landlord' definition

Tenancy agreement dated 8 September 2010 signed by Johnny Jack for the Premises and/or tenancy agreement dated 23 November 2016 signed by Johnny Jack for the premises (separately or together, the tenancy agreement)

• [21] That pleading, and the contention generally, does not take adequate account of the history, nature and content of the legal arrangements under which Jack has enjoyed a right of occupancy over the premises, or the particular legal personality and function of the CEO in relation to public housing.
• [22] Laramba is an Aboriginal community living area which was excised from the Napperby pastoral lease in 1992 in accordance with the provisions of Part 8 of the Pastoral Land Act 1992 (NT). It comprises NT Portion 4069 over which Laramba Community Incorporated holds an estate in fee simple, subject to various statutory conditions and restrictions which govern the use and occupation of Aboriginal community living areas. The premises are situated within NT Portion 4069. Laramba Community Incorporated is an association incorporated under the Associations Act 2003 (NT), and originally incorporated under the Associations Incorporation Act 1978 (NT) for the purpose, inter alia, of holding title to the Aboriginal community living area.
• [23] On 18 August 2007, s 31 of the Northern Territory National Emergency Response Act 2007 (Cth) commenced with effect that a lease over NT Portion 4069 was granted to the Commonwealth for a term of five years.[2] That section operated to grant the Commonwealth leases over approximately 100 portions of Aboriginal land held variously under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), as Aboriginal community living areas, as townships or as town camps. One stated purpose of that compulsory acquisition of leasehold interests was that the Commonwealth intended to assume control of residential dwellings on Aboriginal land for the purpose of bringing those dwellings to an appropriate state of repair and habitability, whilst at the same time affording Aboriginal residents both the security and the responsibility of tenure under tenancy agreements. The Commonwealth also stated its intention to provide funding for the construction of further housing in conjunction with the rehabilitation of existing residential dwellings. Those commitments were subsequently formalised in the National Partnership Agreement on Remote Indigenous Housing made in December 2008.
• [24] As part of that initiative, on 8 September 2010 the Commonwealth leased the premises to Jack. This was a sublease of the leasehold interest held by the Commonwealth, made pursuant to the express power conferred by s 35(5) of the Northern Territory National Emergency Response Act to 'at any time, sublease, licence, part with possession of, or otherwise deal with its interest in the lease'. The landlord under that tenancy agreement was clearly and expressly the Commonwealth of Australia. As counsel for Jack submitted, the tenancy agreement provided expressly that a reference to the landlord included the 'Department of Housing, Local Government and Regional Services on behalf of the Commonwealth', and nominated the landlord's address as 'Department of Housing, Local Government and Regional Services (DHLGRS)'. However, the term 'DHLGRS' was specifically defined in the 2010 tenancy agreement as:

Chief Executive Officer (Housing) established as a body corporate under the Housing Act (NT), undertaking services on behalf of the Commonwealth in relation to the management of the Premises.

• [25] Accordingly, to the extent that the tenancy agreement entered into in 2010 extended the description of the landlord, or contemplated some other entity undertaking services on behalf of the Commonwealth in managing the premises, that extension or entity was the CEO. The reference to the Department as it is subsequently defined in the tenancy agreement, and the fact that the panel form carries the 'Northern Territory Government' logo, must be considered in light of the express nomination of the CEO as manager of the premises. That provision was consistent with the fact that tenancy management for public or social housing in the Northern Territory has been historically conducted by the CEO, which is effectively the successor-in-title to the original Northern Territory Housing Commission first established in 1960. Under the terms of the 2010 tenancy agreement, the management of the premises was expressly to be conducted by the CEO on behalf of the Commonwealth. That conclusion is not affected by the question of whether the terms of the agreement are invalid by operation of s 19 of the Residential Tenancies Act.
• [26] On 17 August 2012, the lease granted to the Commonwealth by operation of s 31 of the Northern Territory National Emergency Response Act expired on the effluxion of the five year period fixed by statute. The consequences of that expiry on the operation of the 2010 tenancy agreement are somewhat uncertain, but it is not strictly necessary for these purposes to make any conclusive findings in that respect. The arrangement between the Commonwealth and Jack under the 2010 agreement was not an assignment, because it clearly was not intended to, and did not, transfer the whole of the Commonwealth's interest in the statutory lease. Accordingly, there was no privity of estate between Jack as tenant and Laramba Community Incorporated as the holder of the estate in fee simple. On any orthodox characterisation, the Commonwealth retained its statutory leasehold interest and created out of it a new leasehold interest in favour of Jack.
• [27] The better view is that the new leasehold interest could not be of any greater duration than the Commonwealth's interest, and was dependent on the Commonwealth's interest for its own existence. That is so regardless of whether the agreement creating the new leasehold interest fixed any term; and regardless of whether the Residential Tenancies Act is considered an exhaustive code for the lawful and effective termination of tenancy agreements. As is plain from the terms of the Residential Tenancies Act, a landlord must have a sufficient interest at general law in order to grant the right to occupy premises under a tenancy agreement. An agreement conferring that right cannot continue following the expiry of the landlord's interest, and the reversionary estate is not subject to the tenant's interest. That is quite a different issue to whether privies to a tenancy agreement may terminate the agreement otherwise than in accordance with the Residential Tenancies Act.
• [28] If that characterisation is correct, a number of consequences followed. First, from the expiry of the statutory interest on 17 August 2012 the Commonwealth ceased to have any leasehold or other interest in NT Portion 4069 and the premises. Second, as no privity of estate existed between Jack and Laramba Community Incorporated, both the 2010 tenancy agreement and any interest Jack held in the land also expired on 17 August 2012. In the absence of a residential tenancy agreement, Jack had neither a leasehold interest with proprietary characteristics nor a contractual right of occupation. Third, from that time the reversionary interest under the Commonwealth's statutory lease vested in Laramba Community Incorporated, which was the only body which could lawfully grant a further right of occupancy over either NT Portion 4069 or the premises under a tenancy agreement.[3]
• [29] The legal entitlements and obligations of the Commonwealth and the CEO after the expiry of the Commonwealth lease are also uncertain. In the period leading up to 17 August 2012, the Commonwealth had been endeavouring to negotiate lease arrangements with the various owners of the land over which statutory leases had been unilaterally acquired by operation of s 31 of the Northern Territory National Emergency Response Act. The intention would appear to have been that the policy, funding and management initiatives set out in the National Partnership Agreement on Remote Indigenous Housing would continue in the Northern Territory under consensual rather than compulsory leasing arrangements.
• [30] The Commonwealth was not able to finalise negotiations for new leases over some of the areas subject to statutory leases by 17 August 2012, including NT Portion 4069 and the premises. Despite that, the Commonwealth determined to continue its commitment to providing housing services on remote communities, including Laramba, even in the absence of any 'formal underlying granted tenure'. Perhaps more dubiously, the Commonwealth proceeded on the assumption that agreements could be created under the Residential Tenancies Act which imposed landlord obligations on the CEO (and vested concomitant rights) even though neither the Commonwealth nor the CEO held any interest in the land. In any event, it would not appear that any new tenancy agreement was created in respect of the premises, and the CEO continued to provide tenancy management services in relation to the premises on behalf of the Commonwealth on what was essentially a voluntary basis. That arrangement continued with the agreement of the Central Land Council and, presumably, Laramba Community Incorporated.[4]
• [31] On 18 July 2014, the negotiations between the Commonwealth, the Central Land Council and Laramba Community Incorporated culminated in Laramba Community Incorporated granting a lease over those parts of NT Portion 4069 containing housing stock to the Executive Director of Township Leasing established under s 20B of the Aboriginal Land Rights (Northern Territory) Act, in accordance with the mechanism in s 20CA of that Act. That lease was styled as a 'Housing Precinct Lease'. Under the terms of that lease:

(a) Laramba Community Incorporated granted a lease over the housing stock in Laramba to the Executive Director on behalf of the Commonwealth;

(c) the parties acknowledged that the grant of the lease was to facilitate the provision of public housing in Laramba;

(d) to that end, the parties recognised that the Executive Director would grant a sublease of the premises to the CEO as a body corporate established under the Housing Act 1982 (NT); and

(e) the parties acknowledged that the CEO would develop a policy to enable local Aboriginals to acquire long-term secure tenure in respect of individual houses in the community.

• [32] In accordance with that recognition and acknowledgement, on the same day on which Laramba Community Incorporated granted the lease to the Executive Director, the Executive Director subleased the housing stock in Laramba to the CEO. Under the terms of that sublease:

(b) the CEO was required to ensure that the housing stock was used to provide public housing;

(c) the CEO was authorised to grant tenancy agreements within the meaning of the Residential Tenancies Act over the housing stock for the purpose of providing public housing; and

(d) the CEO was required to manage that public housing in accordance with the requirements of the Commonwealth as notified to the CEO from time to time, and in accordance with the Remote Public Housing Management Framework.

• [33] For reasons which were not explored in the course of either evidence or submissions, the CEO did not enter into a tenancy agreement with Jack until 23 November 2016. Under the terms of that agreement the landlord was described as the 'Chief Executive Officer (Housing)'. The tenants were described as Jack and another occupant of the premises. By express provision, both the Residential Tenancies Act and the Housing Act were said to apply to the tenancy agreement. In that latter respect, the tenancy agreement acknowledged that under the Housing Act the CEO could engage Public Housing Safety Officers to monitor and control antisocial behaviour and offences under that legislation.
• [34] The better view is that this new tenancy agreement had the effect of replacing any prior arrangement under which Jack occupied the premises, clarifying who held the status as landlord and bore the attendant rights and obligations, and regularising the manner in which property and tenancy management services were provided in relation to the premises. Accordingly, on the assumption that the 2016 tenancy agreement was valid, the CEO was the landlord under that agreement and there is nothing on its face or in the underlying legal arrangements which would suggest that the Territory either granted Jack the right of occupancy or was the CEO's agent in the management of the tenancy.
• [35] I turn then to consider the legal personality of the Territory, and the particular legal personality and function of the CEO in relation to public housing. The Territory is the body politic established under the Crown by the name of the 'Northern Territory of Australia'.[5] Leaving aside purely geographical connotations, the designation 'Northern Territory of Australia' is used variously to mean either the whole body politic or the executive branch.[6] A government Department is not a body with separate juridical personality. A government Department is a unit of administration with responsibility for an area of government of and within the body politic, and has no legal personality of its own. A legislature, including the Legislative Assembly of the Northern Territory, may also incorporate or establish an entity with separate juridical personality to the body politic which has created it. Statutory bodies with separate legal personalities are established to carry out specific functions which may be more effectively performed outside a traditional departmental structure. A statutory body is generally created and used when there is a need: for some operational independence from government; to accommodate funding arrangements separate to the annual appropriations processes; and/or for specific expertise on a governing board.
• [36] A legal entity created for that purpose may take the form of a corporation sole or a body corporate.[7] Such bodies, when created by the legislature, are not the 'Territory' or the 'Crown', as they have separate juridical personality. In the ordinary course, they will hold property, enter into contracts and conduct litigation in their own names, even allowing for the fact that they may also be instrumentalities or agents of the Territory depending upon the specific provisions of the legislation, the functions of the statutory body in question and the degree of governmental control to which it is subject.[8] However, that characterisation is only determinative of matters such as whether the body enjoys Crown immunities or whether it is subject to regulatory laws and legislation with specific application to the public sector. It does not deny or deprive the body of its separate legal personality.
• [37] The CEO is a corporation sole established by s 6 of the Housing Act in the following terms:

(1) There is established an entity by the name of the Chief Executive Officer (Housing).

(a) is a body corporate sole with perpetual succession; and

(c) is capable, in its corporate name, of acquiring, holding and disposing of real, leasehold and personal property and of suing and being sued.

(3) All courts, judges and persons acting judicially must take judicial notice of the seal of the Chief Executive (Housing) affixed to a document and must presume that it was duly affixed.

• [38] The CEO is constituted by the Chief Executive Officer of the Agency responsible for the administration of the Housing Act.[9] The functions of the CEO are to provide and to assist in the provision of residential, office, industrial or other accommodation for Territory or Commonwealth public purposes.[10] The CEO is specifically empowered to do such things as acquire, hold and dispose of real or personal property; build on land; maintain, manage and control premises; let premises; sell dwellings; provide financial and other assistance for the acquisition of land or buildings for accommodation; and sell, lease or otherwise dispose of real or personal property that is surplus to its own, the Territory's or the Commonwealth's needs.[11] Most relevantly for present purposes, the CEO is empowered to 'act as agent for the Territory or Commonwealth in administering a Territory or Commonwealth housing scheme'.[12]
• [39] In the exercise of those powers and the performance of those functions the CEO is subject to the directions of the Minister,[13] but in the absence of any countervailing direction it exercises those powers and performs those functions autonomously. The moneys for the performance of those functions are comprised by such moneys as are appropriated to the CEO by the Legislative Assembly; the monies received by the CEO in the performance of its functions and the exercise of its powers; moneys lent to the CEO by the Territory, a statutory corporation or financial institution; and advances made by the Treasurer.[14]
• [40] In Australia, governments have historically created separate legal entities to conduct their public or social housing functions.[15] In some jurisdictions such as Victoria and New South Wales, these housing commissions were accountable to a Minister. In other cases, such as for the South Australian Housing Trust, that structure was designed to allow the statutory authority to operate at arm's length from the Government. In yet other cases, the function was conducted outside government structures, such as the establishment in Tasmania of a separate housing division within the Agricultural Bank.
• [41] The Commonwealth Government established a Housing Commission of inquiry in 1943, the ultimate recommendation of which was the establishment of a mechanism for funding the provision of public housing in the States. This took the form of the first Commonwealth-State Housing Agreement by which the Commonwealth provided financial support in the form of cheap loans to facilitate the provision of public housing.
• [42] Under those arrangements, the State housing authorities were required to charge economic rents, to apply those rents to the variable costs of maintenance and administration, to enter into agreements with private builders for the construction of public housing stock, and to borrow moneys for that purpose. The housing commission structure was better adapted to the conduct of quasi-commercial operations of that nature because, among other reasons, they were not subject to the ordinary government regulation of the sourcing and application of public moneys and the sale of public assets.
• [43] In conformance with those usual arrangements, the entity responsible for public or social housing in the Northern Territory prior to self-government was constituted in 1960 as the Housing Commission. That entity continued in existence under the same name following self-government, and following the commencement of the Housing Act in 1982. With the passage of the Housing Amendment Bill in 1998, the constitution of the Housing Commission was changed from that of a body corporate to a body corporate sole, and the name of the entity was changed to the 'Chief Executive Officer (Housing)'. It has remained the case throughout that period that public or social housing functions in the Northern Territory have been conducted by an entity with legal personality separate to that of the 'Territory', which is not subject to the requirements and strictures imposed by public sector financial legislation.
• [44] Under the current Administrative Arrangements Order, the Minister for Territory Families and Urban Housing is given responsibility for the areas of government constituted by the 'Chief Executive Officer (Housing)' and 'NT Home Ownership'. However, the 'Chief Executive Officer (Housing)' is not nominated as an Agency for the purposes of either the Financial Management Act 1995 (NT) or the Public Sector Employment and Management Act 1993 (NT). Accordingly, the CEO is not subject to the requirements and strictures of that legislation, and particularly the financial legislation. Similarly, the NT Home Ownership scheme is also not nominated as an Agency for the purposes of the Public Sector Employment and Management Act; although it is nominated as an Agency for the purposes of the Financial Management Act and is subject to the strictures of that legislation. While the officer constituting the CEO also holds office as the Chief Executive Officer of the Department of Territory Families, Housing and Communities, the establishment and functions of the CEO under the Housing Act stand quite separately to the other activities of that Department and, as can be seen from the establishing legislation extracted above, the CEO is expressly created with separate juridical personality.
• [45] Returning then to the definition of 'landlord', for the reasons described above neither the Territory nor the former Department of Housing, Local Government and Regional Services granted Jack the right of occupancy under the 2010 tenancy agreement, and neither the Territory nor any successor Department granted Jack the right of occupancy under the 2016 tenancy agreement. The body which granted the right of occupancy under the 2010 tenancy agreement was the Commonwealth, and the 'Chief Executive Officer (Housing)' was effectively nominated as its agent for the purpose of managing the tenancy, including following the expiry of the statutory lease in 2012. The body which granted the right of occupancy under the 2016 tenancy agreement was the 'Chief Executive Officer (Housing)', and the CEO is properly characterised as the landlord since that time. The operative question is whether the Territory is at any material time properly characterised as the agent of the Commonwealth or the CEO as landlord. In conducting that analysis, it may be accepted that both the former Department of Housing, Local Government and Regional Services and the current Department of Territory Families, Housing and Communities form part of the Territory.
• [46] The central premise on which Jack seeks to join the Territory is that it bore and bears an obligation as landlord under the term implied by s 48(1) of the Residential Tenancies Act requiring the premises to be habitable. In pressing that contention, counsel for Jack relies in part on an observation in Cavanagh v Chief Executive Officer (Housing)[16] to the effect that the CEO was the agent of the Commonwealth under a residential tenancy agreement in terms similar to the 2010 agreement under consideration in this matter. Under the terms of that agreement, as with the 2010 agreement in the present case, the 'Landlord' was described as '[t]he Commonwealth of Australia' and to include '[the] Department of Housing, Local Government and Regional Services on behalf of the Commonwealth'. However, as with the 2010 agreement in the present case, that agreement went on to define the Department as the 'Chief Executive Officer (Housing) established as a body corporate under the Housing Act (NT)' undertaking services on behalf of the Commonwealth in relation to the management of the premises.
• [47] The characterisation of the CEO as the Commonwealth's 'agent' for the purposes of the agreement under consideration in Cavanagh was made on that basis. In any event, that characterisation does not form part of the ratio of the decision; the decision does not involve any consideration of the CEO's separate legal personality or the position of the Territory vis-à-vis the CEO; and by express arrangement with the Commonwealth the CEO was clearly designated as the landlord's agent for the purposes of managing the tenancy.
• [48] That management structure was subsequently rationalised under the arrangements for remote public housing described above, by which the Executive Director of Township Leasing granted subleases to the CEO authorising the CEO to grant the right of occupancy directly as landlord. The decision in Cavanagh has nothing to say about whether the Territory is the 'agent' of the CEO in those circumstances, or about the meaning of the term 'agent' in the Residential Tenancies Act.
• [49] The term 'agent' is imprecise and protean in meaning. It may be used in the technical legal sense to mean a person with authority to create legal relations between the person occupying the position of principal and third parties by, for example, entering into a contract on behalf of the principal.[17] In common parlance, it can also extend to a person acting on behalf of another, one who acts for a buyer or seller of commodities, or the representative of a business.
• [50] In Colonial Mutual Life Assurance Society Limited v The Producers and Citizens Co-operative Assurance Company of Australia Limited [1931] HCA 53; (1931) 46 CLR 41 at 50, Dixon J spoke of the many senses in which the word 'agent' is employed and cited the following passage:

'No word is more commonly and constantly abused than the word "agent." A person may be spoken of as an "agent" and no doubt in the popular sense of the word may properly be said to be an "agent," although when it is attempted to suggest that he is an "agent" under such circumstances as create the legal obligations attaching to agency that use of the word is only misleading' (per Lord Herschell in Kennedy v De Trafford [1897] UKLawRpAC 13; (1897) AC 180, at p 188).[18]

• [51] The meaning to be ascribed to the term 'agent' in a statute will depend upon its language, context and purpose. It is therefore both instructive and necessary to examine the contexts in and purposes for which the term 'agent' is used in the Residential Tenancies Act. Those contexts and purposes include:

(a) The objectives of the Act are expressed to include 'to improve the understanding of landlords, tenants and agents of the rights and obligations in relation to residential tenancies'.[19] The Minister responsible for the regulation of real estate agents may determine that part of the fidelity guarantee fund established under that legislation is to be paid into the Tenancy Trust Account established by the Residential Tenancies Act for the purpose of, inter alia, 'educating landlords, landlord's agents and tenants about their statutory and contractual rights and obligations'.[20]

(b) A landlord is vicariously liable, including criminally, for conduct engaged in on behalf of the landlord by an agent or employee within the scope of the agent or employee's actual or apparent authority.[21]

(c) It is an express requirement that if a landlord enters into a tenancy agreement the agreement must contain the name and address for service of the landlord's agent, if any; and that notice of any change to those details is provided to the tenant within 14 days.[22]

(d) If a landlord who holds a security deposit in trust for a tenant intends to leave the Territory for a period of more than 14 days, the landlord must pay the money to a 'real estate agent' or to a person approved in writing by the Commissioner.[23]

(e) A person authorised by an agent of the landlord may enter the premises for the purpose of collecting rent and carrying out necessary repairs and maintenance.[24]

(f) A tenant may discharge its obligation to give notice or pay money to a landlord by giving that notice or paying that money to the landlord's agent.[25]

• [52] A number of conclusions may be drawn having regard to those provisions.
• [53] First, there is a presumption that where a statute uses a word with an established legal meaning, that is the meaning that the word will bear unless the context suggests otherwise.[26] In the present case, the context clearly indicates that the statute adopts a meaning for 'agent' other than its technical legal meaning. Accordingly, the presumption that the term is used to denote a person or entity with authority to create legal relations on behalf of the principal is displaced.
• [54] Second, given the specific reference to a 'real estate agent' in various provisions, the term 'agent' is broader in scope than a person or corporation holding registration under the Agent Licensing Act 1979 (NT). However, the statutory focus on the education of landlords' agents concerning statutory and contractual rights and obligations in relation to residential tenancies suggests that the term 'landlord's agent' is directed to a person who has assumed a general obligation in relation to the control and management of a residential tenancy.
• [55] Third, the power of an agent to authorise others to enter premises for the purpose of such matters as collecting rent indicates that although the term 'agent' may not be used in the strict legal sense, it does connote a person with similar authority to the landlord so far as the control and management of the tenancy arrangement is concerned. So much is also apparent from the fact that a tenant may discharge its liability for rent by making payment to the agent.
• [56] Fourth, given the statutory requirement for the nomination of any agent, the inference flowing naturally from that requirement is that 'agency' for these purposes requires some form of express arrangement or appointment. As already described, the 2010 tenancy agreement expressly nominates the CEO as the body corporate undertaking services on behalf of the Commonwealth in relation to the management of the premises. Conversely, the 2016 tenancy agreement makes no provision for the name and address for service of a landlord's agent.
• [57] Fifth, the tort law tests for agency are inapt to the determination of the present question. Those tests are directed to the question of whether the principal is liable for the tortious act of another in circumstances where the principal has determined the scope of the agent's authority. The relevant operation of the term 'agent' in this case is to make all those who meet that description subject to the full scope of the landlord's statutory obligations. That is an obligation of broad scope, and not one which can rationally be imposed by statute divorced from an informed assumption of responsibility by the obligor.
• [58] In the absence of any statutory definition or technical meaning of the term 'agent' in this context, on proper construction it denotes a person or other entity having the landlord's authority in relevant respects concerning the control and management of the tenancy. An 'agent' is one within whose authority and power it is to discharge the landlord's statutory obligations and exercise the landlord's statutory rights under the Residential Tenancies Act and the relevant tenancy agreement. On that construction, the Territory is not capable of characterisation as the CEO's agent for the purposes of the management of these premises specifically, or the provision of public or social housing generally. As counsel for the Territory submits, a court 'will not find the Crown to have assumed the role of agent unless there is evidence that clearly establishes the Crown's intention to act as agent'.[27] The indications of intention in this case are all the other way.
• [59] As described above, the Legislative Assembly has expressly constituted the CEO as a separate legal personality with the function of providing residential accommodation for public purposes, and to act as agent for the Territory or the Commonwealth in administering a housing scheme. The Legislative Assembly has made that provision in circumstances where the Territory has executive authority to administer public and social housing schemes on its own account should it determine to do so; but it has not. To find in that statutory and functional context that the Territory is the CEO's agent for the purpose of administering tenancy arrangements for public or social housing would be to invert the true nature of the relationship and the legislative arrangement, and to proceed on the basis that the legislature does not mean what it says[28].
• [60] Leaving aside the terms of the statute, there is also no basis identified on which to suggest that the Territory exercises the landlord's powers in relevant respects concerning the control and management of the tenancy arrangements. Rather, the CEO does so by delegation to individual officers, including Public Housing Safety Officers, and in so doing those officers exercise the powers and functions of the CEO. That conclusion is not altered by the fact that the CEO is subject to Ministerial direction. While it is no doubt the case that directions may be given in relation to broad strategic and financial matters, there is no basis identified on which to suggest that the Minister deploys that power in the control and management of individual tenancy arrangements, or that in providing such direction the Minister would be acting as an 'agent' in the relevant sense.
• [61] It is also not to the point that the Territory funds the provision of essential services to the premises through the Power and Water Corporation. The Territory funds the provision of services to a broad range of residential premises in the Northern Territory through the Corporation, and not necessarily on a costs recovery basis. Those essential services are provided to both publicly and privately owned residential premises. It does not follow that either the Corporation and/or the Territory is thereby the agent of the landlord in relation to the management of the premises. That is because the provision of electricity, gas, water or sewerage by a public (or private) utility provider does not constitute or form part of the management and control of the tenancy arrangement so as to render the provider the 'agent' of the landlord in the relevant sense. Of course, that is quite a different question to whether a landlord may bear an obligation under the term implied by s 48 of the Residential Tenancies Act in relation to the quality of water supplied in the premises.
• [62] During the course of oral submissions, counsel for Jack asked rhetorically whether it could be said that in all of the myriad dealings between the tenant and the relevant government agencies in relation to the premises, the Territory has at no time been acting as an agent of any landlord of those premises. That question simply draws attention to the fact that it is incumbent on the applicant for joinder to establish a good arguable case for relief against the party sought to be joined as a defendant to proceedings, and that the applicant has failed to identify any dealing in which the Territory has arguably been acting as an agent of the landlord of the premises. The appearance of the Northern Territory Government logo on a panel form tenancy agreement in no way establishes an arguable case in circumstances where the CEO is no doubt involved in a specific aspect of the governance of the Northern Territory, but has legal personality distinct from the body politic.
• [63] For these reasons, the application for the joinder of the Territory must fail.

The application for summary judgment or a permanent stay

• [64] I turn then to consider the CEO's application for summary judgment or a permanent stay of the proceedings. In essence, the application is brought on the basis that by reason of the Tribunal's determination that the CEO was not in breach of the term implied by s 48(1) of the Residential Tenancies Act, the cause of action sought to be prosecuted by Jack in this Court is res judicata; and/or is precluded by cause of action or issue estoppel; and/or constitutes an abuse of process.
• [65] It may be accepted that the decision of the Tribunal on the preliminary issue did not equate to res judicata in the strict sense. The fact that the decision was subject to internal review, and that Jack has initiated a review, precludes its characterisation as a final decision which attracts the operation of the doctrine of res judicata. Turning then to the question of estoppel, even if one were to accept for the sake of argument that the Tribunal is not exercising Territory judicial power in the determination of applications under the Residential Tenancies Act, the High Court has recognised that cause of action estoppel and issue estoppel are not confined to the exercise of judicial power, and that they may also operate in the context of judgments rendered in other adversarial proceedings.[29] However, estoppel in those forms can also only result from the rendering of a final judgment. The availability and initiation of the internal review procedure again precludes that characterisation.[30] The application before the Tribunal, including the preliminary issue determined adversely to Jack's interests, remains pending because the preliminary determination may be varied or set aside on internal review.
• [66] However, even where the principles of res judicata or estoppel do not preclude a party from re-litigating issues which have been decided against it in other proceedings, a superior court has inherent jurisdiction to prevent that re-litigation as an abuse of process.[31] Although the exercise of that jurisdiction is not attracted merely because a party seeks to re-litigate an issue already decided against it, it is prima facie an abuse of process to bring a proceeding which is in essence a collateral attack upon a decision which has not been subject to appeal, or is subject to an appeal which is yet to be determined.[32] There is no relevant point of distinction for this purpose between an appeal and the internal review which Jack is presently prosecuting in the Tribunal. In AON Risk Services Australia Ltd v Australian National University, French CJ described the breadth of the doctrine in the following terms:

Abuse of process principles may be invoked to prevent attempts to litigate that which should have been litigated in earlier proceedings as well as attempts to re-litigate that which has already been determined. [Reichel v Magrath [1889] UKLawRpAC 20; (1889) 14 App Cas 665] is a long standing example of a re-litigation case decided on abuse of process grounds, rather than on the basis of res judicata or issue estoppel. It was relied upon in [Walton v Gardiner (1993) 177 CLR 378] and [Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251]. In the former case, Mason CJ, Deane and Dawson JJ said that:

[P]roceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.

The majority also endorsed the observation in [Hunter v Chief Constable of West Midlands Police [1981] UKHL 13; [1982] AC 529] that courts have an inherent power to prevent misuse of their procedures in a way which, although not inconsistent with the literal application of the Rules, would nevertheless be unfair to a party to the litigation "or would otherwise bring the administration of justice into disrepute among right-thinking people".

The House of Lords in [Johnson v Gore Wood & Co [2002] 2 AC 1] acknowledged the distinction between "[Henderson v Henderson] abuse of process" on the one hand, and cause of action estoppel and issue estoppel on the other. Referring to public interest considerations of the kind discussed earlier in these reasons, Lord Bingham of Cornhill said:

The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.

A broad merits-based judgment was required, taking account of public and private interests affected and focussing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it an issue which could and should have been raised earlier. As Lord Bingham said: "As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not." [33]

• [67] A similar formulation was expressed more recently by the majority in Tomlinson v Ramsey Food Processing Pty Ltd in the following terms (footnotes omitted):

Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.

Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel.[34]

• [68] Against that background, the cause of action pleaded in the proceedings now commenced by the plaintiff in the Supreme Court is that the defendant is in breach of the term of the tenancy agreement implied by s 48(1) of the Residential Tenancies Act because the only drinking water supplied at the premises contains elevated concentrations of uranium. It is the same breach as is pleaded in the application which remains before the Tribunal. Moreover, the Statement of Claim does not seek damages for breach of contract. Rather, it seeks compensation, presumably pursuant to s 122 of the Residential Tenancies Act. In addition to that claim for compensation, the Statement of Claim seeks relief in the following terms:

(a) That the Respondent be enjoined from providing drinking water at Lot 22, Laramba other than water below the maximum safe uranium concentration level identified in the Australian Drinking Water Guidelines; and

(b) A declaration that the only drinking water made available at Lot 22 makes and has made since 2013 that premises not habitable for the purposes of s 48 of the Residential Tenancies Act 1999 (NT).

• [69] It is evident that the issues which Jack seeks to prosecute in these proceedings are the same as those arising on the application to the Tribunal, including the preliminary issue which has been determined adversely to him; and that Jack has invoked the review procedure in relation to that determination. Jack did not oppose the determination of the preliminary issue by the Tribunal at first instance 'on the papers', or suggest that any further evidence and/or factual findings were necessary for that purpose. In fact, Jack's legal representatives had urged the Tribunal to determine all of the issues 'on the papers' save for the question of quantum. In the context of the internal review proceedings, Jack's position was only that the Tribunal should consider the 'legal question' determined at first instance and 'the factual question of whether uranium levels in the water at Laramba in fact pose a risk to the health and safety of residents'. It was not until the Tribunal determined to refer the questions of law to this Court that Jack's legal representatives suggested that further evidence and factual findings were necessary in relation to the issue which had been determined adversely against him at first instance. Shortly after that reference was made, Jack commenced these separate proceedings against the CEO in the Supreme Court in circumstances where the application for internal review was pendent.
• [70] These proceedings seek relief in relation to a residential tenancy predicated upon a term implied by the Residential Tenancies Act and, at least so far as the claim for compensation is concerned, apparently in the exercise of powers and remedies conferred and created by that legislation. Matters of that type have hitherto invariably been dealt with by the Tribunal under the residential tenancies legislation. Although there is no express provision in the Residential Tenancies Act to the effect that the Tribunal has an exclusive original jurisdiction, many of the fundamental powers under the legislation are expressed in terms which imply that they may only be exercised by the Tribunal. Those powers include termination, possession and disputes over bonds.[35] It is also the case that while the Supreme Court may have general jurisdiction and power to award damages for breach of contract, it does not obviously have an original jurisdiction to award compensation pursuant to s 122 of the Residential Tenancies Act.
• [71] So far as the enforcement of landlords and tenants' obligations under residential tenancy agreements is concerned, the Residential Tenancies Act has the appearance of a code. For example, it is prescriptive in terms of the steps that a party must take as conditions precedent to seeking relief in the Tribunal. It is difficult on the face of the matter to see how such a scheme could operate harmoniously with a free-standing right to pursue a remedy in this Court. It is of some significance in that respect that prior to the establishment of the Tribunal and the investment of that body with jurisdiction in relation to residential tenancies, the Residential Tenancies Act made specific provision regarding the jurisdiction of the Local Court and the Supreme Court. Part 14 gave jurisdiction to those courts where a tenant claimed more than $10,000 in relation to a matter arising under a residential tenancy agreement. Moreover, for such claims the courts also had something in the nature of an accrued jurisdiction for 'other claims relating to the same tenancy', such as termination orders. The legislation as it then stood contained provisions in aid of that extended jurisdiction. So, for example, s 82 of the legislation referred to a power of 'a court or the Commissioner [of Tenancies]' to make a termination order. There are no analogue provisions in the current Act, and there is no monetary limit to a claim made in the Tribunal for an award of compensation pursuant to s 122 of the Residential Tenancies Act.
• [72] In Josephson v Walker, the High Court expressed the following principle:

Prima facie, where the same statute creates a new right and specifies the remedy, that remedy is exclusive. The natural presumption to begin with is that Parliament in creating the novel right attaches to it the particular mode of enforcement as part of its statutory scheme. To that extent the enactment is a code.[36]

• [73] By reference to that same principle, in Forster v Jododex Australia Pty Ltd, Walsh J stated:

In my opinion, when a special tribunal is appointed by a statute to deal with matters arising under its provisions and to determine disputes concerning the granting of rights or privileges which are dependent entirely upon the statute, then as a general rule and in the absence of some special reason for intervention, the special procedures laid down by the statute should be allowed to take their course and should not be displaced by the making of declaratory orders concerning the respective rights of the parties under the statute. In other words, I think that it will ordinarily be a wise exercise by the Supreme Court of the discretion which it has under s 10 of the Equity Act to decline to undertake the tasks which have been committed by the Parliament to a specialised tribunal. Whilst I agree with Gibbs J that s 10 ought not to be construed as if it contained words excepting from its operation cases arising under the Act, I think that the procedure set out in the Act itself should be regarded as the normal procedure for dealing with such cases.[37]

• [74] Even if the rights, privileges and remedies available to landlords and tenants arising out of a residential tenancy arrangement are not governed exclusively by the Residential Tenancies Act, there is no doubt that the Legislative Assembly intended that rights and remedies arising from the provisions of that legislation be dealt with exclusively by the Tribunal at first instance. That conclusion is reinforced by the fact that under the statutory scheme there is a provision for questions of law to be referred to the Supreme Court by the Tribunal; there is a provision for the Tribunal to transfer applications to the Supreme Court in limited circumstances; and there is an avenue of appeal to the Supreme Court limited to a question of law.
• [75] That structure also answers the submission made on behalf of Jack to the effect that the commencement of the separate proceedings is an appropriate process by which to procure a determination by the Supreme Court of the question of whether the Tribunal has jurisdiction to order relief in the nature of injunctive relief, with a view to the Supreme Court remitting the matter to the Tribunal once that question has been determined. Given the Tribunal's original jurisdiction under the Residential Tenancies Act, and the structures by which matters arising in that jurisdiction are designed to come before the Supreme Court, the commencement of parallel proceedings is an inappropriate process by which to have questions of law determined in this forum. That is so even allowing for the fact that the Supreme Court has a general jurisdiction under s 14(1)(d) of the Supreme Court Act 1979 (NT) to hear and determine proceedings which seek injunctive relief against an officer of the Territory in proceedings arising under a law in force in the Territory.
• [76] Even allowing for the fact that the power to strike out or stay proceedings for abuse of process should only be used sparingly, an order permanently staying these proceedings is properly made in these circumstances. First, it is oppressive for a defendant/respondent to be faced with two proceedings in different jurisdictions seeking the same relief. Second, it impairs the administration of justice for a plaintiff to commence parallel proceedings in the original jurisdiction of the Supreme Court in relation to a matter for which there are internal review proceedings initiated and pendent in the proper forum, and which has already been raised and determined adversely to the plaintiff at first instance in that forum. Third, it is contrary to the statutory scheme governing residential tenancies, which in the relevant respects operates as a code, for proceedings concerning rights and remedies arising from the provisions of the Residential Tenancies Act to be commenced in the original jurisdiction of the Supreme Court. For the reasons described in Jack v Chief Executive Officer (Housing) (No 1) [2021] NTSC 79, which have been delivered contemporaneously with this decision, the reference to the Supreme Court has been sent back to the Tribunal and the matter is properly prosecuted in that forum.

• [77] In accordance with these reasons, I make the following orders:

1. The plaintiff's application by Summons filed on 19 March 2021 seeking an order that the Northern Territory of Australia be joined as the second defendant to the proceeding and related relief is dismissed.

2. The within proceedings commenced by Writ filed on 30 November 2020 are permanently stayed.

• [78] The Court will hear the parties in relation to costs if need be.

____________________________

[1] Mandahan v Toyota Finance Australia Ltd (No 2) [2020] FCA 3, [5].

[2] Clause 56 in Part 2, Schedule 1 to the Northern Territory National Emergency Response Act 2007 (Cth) prescribes 'Laramba: The whole of the land described in Certificate of Title Volume 249 Folio 116 being NT Portion 4069 from plan S 82/192'.

[3] The decision in Cavanagh v Chief Executive Officer (Housing) (2018) 345 FLR 55 was concerned principally with whether the continuation of the tenancy agreement in question was inconsistent with the provisions of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The Court in Cavanagh did not consider this particular issue, but to the extent that the decision is any authority for the proposition that the 2010 tenancy agreement in this case has persisted by operation of the Residential Tenancies Act, I am respectfully unable to agree.

[4] See generally the correspondence from the Commonwealth Department of Families, Housing, Community Services and Indigenous Affairs dated 17 and 21 August 2012 extracted at [22] and [23] of Cavanagh v Chief Executive Officer (Housing) (2018) 345 FLR 55.

[5] See Northern Territory (Self-Government) Act 1978 (Cth), s 5. The notion of the body politic derived from the conception that the monarch was a 'corporation sole' in his or her natural person, who had all the natural capacities of an ordinary person to engage in contracts and deal with property, the special prerogatives of a Sovereign and such powers as were delegated by Parliament. As the notion has developed, a body politic is a juridical or juristic person created by law which enjoys all the capacities of a natural person.

[6] The meaning will depend upon the context. So, for example, where the Territory sues or is sued, it is in its capacity as the juristic person comprised by the body politic. Conversely, where the Territory does something like closing a river to fishing or making regulations, it does so as the executive exercising executive authority (although usually in the name of a Minister or the Administrator). Sometimes the one transaction will involve both concepts. So, for example, when the Territory enters into a contract, it does so in the exercise of its executive authority, but the party to the contract is the juristic person comprised by the body politic.

[7] The only material difference is that a corporation sole is constituted by a single officer, whereas a body corporate is ordinarily constituted by more than one officer or member.

[8] See Hogg PW, Liability of the Crown (2nd ed, Sydney: LBC, 1989), 248-250; Bolwell v Australian Telecommunications Commission (1982) 61 FLR 154, 157-160; Metropolitan Water, Sewerage and Drainage Board (NSW) v Fisher [1980] FCA 146; (1980) 33 ALR 173; Bradken Consolidated Ltd v Broken Hill Pty Co Ltd [1979] HCA 15; (1979) 145 CLR 107, 115; Inglis v Commonwealth Trading Bank of Australia [1969] HCA 44; (1969) 119 CLR 334, 337-338; Ventana Pty Ltd v Federal Airports Corporation (1997) 95 LGERA 58, 76-77.

[9] Housing Act, s 7.

[10] Housing Act, s 15.

[11] Housing Act, s 16(2).

[12] Housing Act, s 16(2)(h).

[13] Housing Act, s 17.

[14] Housing Act, s 21.

[15] The South Australian Government established the South Australian Housing Trust in 1937; the Victorian government formed its first Housing Commission in 1938; and the New South Wales Government established its first Housing Commission in 1942.

[16] Cavanagh v Chief Executive Officer (Housing) (2018) 345 FLR 55, [58].

[17] International Harvester Company of Australia Proprietary Limited v Carrigan's Hazeldene Pastoral Company [1958] HCA 16; (1958) 100 CLR 644, 652.

[18] Colonial Mutual Life Assurance Society Limited v The Producers and Citizens Co-operative Assurance Company of Australia Limited [1931] HCA 53; (1931) 46 CLR 41, 50.

[19] Residential Tenancies Act, s 3(b).

[20] Residential Tenancies Act, s 16.

[21] Residential Tenancies Act, s 9.

[22] Residential Tenancies Act, ss 19(1)(a), 156.

[23] Residential Tenancies Act, s 29(5).

[24] Residential Tenancies Act, ss 69, 71.

[25] Residential Tenancies Act, s 157.

[26] A-G (NSW) v Brewery Employés Union of New South Wales [1908] HCA 94; (1908) 6 CLR 469, 531; Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59; (1998) 195 CLR 566, 585-586; Palgo Holdings Pty Ltd v Gowans [2005] HCA 28; (2005) 221 CLR 249, 261.

[27] GE Dal Pont, Law of Agency, 2nd Ed (2008) LexisNexis Butterworths Australia at [1.50].

[28] See, for example, R v Kearney; Ex parte Japanangka [1984] HCA 13; (1984) 158 CLR 395, 405, 411.

[29] Tomlinson v Ramsey Food-Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507, 516-517. Moreover, the doctrine of estoppel extends to any tribunal which has jurisdiction to decide finally a question arising between the parties, even if it is not a court and its jurisdiction is derived wholly from statute. All that is required is that it must be under a duty to act judicially in the exercise of a power to decide: see Administration of Territory of Papua and New Guinea v Guba (1973) 130 CLR 353, 402; Pagliotti v Hartner [2009] FamCAFC 18; (2009) 223 FLR 121. There is no doubt that the Tribunal is under a duty to act judicially, even accepting that it is not bound by the rules of evidence and that it is under an obligation to determine proceedings before it as efficiently and expeditiously as possible.

[30] For estoppel to operate in the context of judgments delivered by courts of justice the judgment must be 'on the merits'. That will ordinarily involve a full hearing on evidence leading to findings of fact. However, in the present case Jack consented to a procedure for the preliminary determination of the issue without a trial, by which certain material facts described 'on the papers' were treated as proved or not in dispute.

[31] Hunter v Chief Constable of West Midlands Police [1981] UKHL 13; [1982] AC 529, 536; Walton v Gardiner (1993) 177 CLR 378, 392-394; Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441; Re Gasbourne Pty Ltd [1984] VicRp 70; [1984] VR 801; TJM Products Pty Ltd v A & P Tyres Pty Ltd (1987) 17 FCR 390; Housing Trust (SA) v State Government Insurance Commission (1989) 51 SASR 1, 18-19; Saffron v Commissioner of Taxation [1991] FCA 363; (1991) 30 FCR 578.

[32] Stergiou v McGrail (Unreported, FCAFC, Burchett, Ryan and Gummow JJ, G 99 of 1993, 22 April 1994).

[33] AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, [33]-[34]. See also Commissioner of State Revenue (Vic) v Mondous [2018] VSCA 185; (2018) 55 VR 643, 677 [143].

[34] Tomlinson v Ramsey Food-Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507, 518-519.

[35] See, for example, Residential Tenancies Act, s 82.

[36] Josephson v Walker [1914] HCA 68; (1914) 18 CLR 691, 701.

[37] Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421, 427.