Chief Executive Officer (Housing) v Pepperill
[2024] NTCA 10
•24 December 2024
CITATION:Chief Executive Officer (Housing) v Pepperill & Ors [2024] NTCA 10
PARTIES:CHIEF EXECUTIVE OFFICER (HOUSING)
v
JOANNE PEPPERILL
JAMESIE STAFFORD
KENNEDY BROWN
ANITA McNAMARA
JOHNNY JACK
TITLE OF COURT: COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CIVIL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:AP 2 of 2024 (22403881)
DELIVERED: 24 December 2024
HEARING DATE: 29 November 2024
JUDGMENT OF: Kelly, Brownhill and Huntingford JJ
CATCHWORDS:
APPEAL – Residential tenancies – Habitability of residential premises – Statutory meaning of ‘habitable’ – Reach of the concept of habitability – Whether the requirement of habitability is confined to the premises – Implied term in s 48(1)(a) that the landlord must ensure habitability of premises – Proper construction of the implied term – For premises to be other than habitable they must be not reasonably suitable for occupation for residential use in that condition whether by reason of safety, health or reasonable comfort – Whether the landlord’s obligation requires strict/absolute liability or only ‘reasonable steps’ – Landlord has an obligation to take ‘reasonable steps’ – Assessment of whether ‘reasonable steps’ have been taken requires a multifactorial analysis – Matters relevant to that assessment are yet to be determined – Matter remitted for reconsideration in accordance with this Court’s judgment – Appeal dismissed.
NOTICE OF CONTENTION – Whether the NTCAT failed to consider or evaluate the central and undisputed evidence of the relationship between the tenants and third party supplier of water – Evidence relied upon was neither pertinent nor contradictory – Evidence relied upon did not require weighing or preference – NTCAT did not ignore, overlook or misunderstand the materials relied upon or arguments made by the tenants – Notice of contention dismissed.
Interpretation Act 1978 (NT) s 55.
Power and Water Corporation Act 1987 (NT) ss 14A, 29, 32, 133.
Residential Tenancies Act 1999 (NT) ss 3, 4, 47, 48, 60, 63, 122.
Collins v Hopkins [1923] 2 KB 617, Jack v Chief Executive Officer (Housing) (No 2) [2021] NTSC 81, Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313, Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, Chief Executive Officer (Housing) v Young [2022] NTCA 1, referred to.
REPRESENTATION:
Counsel:
Appellant:D McLure SC with T Moses
Respondent: M Albert
Solicitors:
Appellant:Mills Oakley
Respondent: Australian Lawyers for Remote Aboriginal Rights
Judgment category classification: B
Number of pages: 43
IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINChief Executive Officer (Housing) v Pepperill & Ors [2024] NTCA 10
No. AP 2 of 2024 (22403881)
BETWEEN:
CHIEF EXECUTIVE OFFICER (HOUSING)
Appellant
AND:
JOANNE PEPPERILL
First Respondent
JAMESIE STAFFORD
Second Respondent
KENNEDY BROWN
Third Respondent
ANITA McNAMARA
Fourth Respondent
JOHNNY JACK
Fifth Respondent
CORAM: KELLY, BROWNHILL and HUNTINGFORD JJ
REASONS FOR JUDGMENT
(Delivered 24 December 2024)
Factual and procedural background
This is an appeal from the decision of the Supreme Court in Pepperill v Chief Executive Officer (Housing) [2023] NTSC 90. By that decision, the Supreme Court granted the now respondents leave to appeal the decision of the Northern Territory Civil and Administrative Tribunal (‘NTCAT’) made on 13 May 2022 and allowed their appeal. The Supreme Court set aside the decisions of NTCAT made on 13 May 2022 and 29 July 2020 in relation to six identified files and remitted the matter to the original jurisdiction of the NTCAT for reconsideration in accordance with the recommendation that the applications in those files ‘be determined consistently with the Supreme Court’s decision, especially at [47].’
The following background is taken from the Supreme Court’s decision at [1]-[14], [28]-[30].
In November 2019, 24 separate applications were commenced in the NTCAT pursuant to the provisions of the Residential Tenancies Act 1999 (NT) (‘RTA’).
The applicants, including the five respondents in this appeal (‘tenants’), are all tenants of residences in Laramba, which is a remote Aboriginal community located approximately 200km north-west of Alice Springs and has a population of about 300 people.
The respondent to each of the 24 applications, the appellant in this appeal (‘CEOH’) is the landlord of the residences the subject of the NTCAT applications. It is a body corporate sole with perpetual succession created by the Housing Act 1982 (NT). One of its functions is to provide and assist in the provision of residential accommodation (s 15(1)(a)). In the exercise of its powers and the performance of its functions, it is subject to the direction of the Minister (s 17).
Under the Power and Water Corporation Act 1987 (NT), statutory responsibility for the supply of water to residences in Laramba lies with the Power and Water Corporation (‘PWC’). A wholly owned subsidiary of the PWC, Indigenous Essential Services Pty Ltd (‘IES’), actually supplies the water to the residences.
The 24 applications to NTCAT alleged, inter alia, that the concentration of uranium in the water supplied to the residences was significantly higher (alleged to be three times higher) than the maximum level for that mineral set out in the Australian Drinking Water Guidelines (‘Water Guidelines’). The 24 applications alleged that, for that reason, the residences were not ‘habitable’ as required by s 48(1)(a) of the RTA and/or did not meet all health and safety requirements specified under an Act as required by s 48(1)(b) of the RTA.
The relief sought by the tenants in each application was: (i) an order, pursuant to s 64 or 67 of the Northern Territory Civil and Administrative Tribunal Act 2014 (NT),[1] that the CEOH install a system or filter to remove uranium from the water emanating from at least one tap in the kitchen to below the maximum safe drinking level in the Water Guidelines; and (ii) compensation and/or rent repayment to the tenants pursuant to s 122(1) of the RTA.[2]
By agreement between the parties, three of the 24 applications proceeded as ‘test cases’.
On 1 July 2020, the NTCAT decided that a preliminary question should be determined as to whether s 48(1) of the RTA required a landlord to ensure a certain standard of water quality.[3] The NTCAT found (at [45]) that the CEOH did not make the water available to the residences; rather (at [46]), the PWC did so in accordance with its statutory responsibilities. The NTCAT concluded (at [47]-[55]) that, in those circumstances, the CEOH could not be in breach of s 48(1) of the RTA with respect to the level of uranium in the water supplied to the residences.
On 29 July 2020, the NTCAT dismissed the three applications insofar as they relate to the uranium in the water issue.
The tenants applied for an internal review of the NTCAT’s decision. On the review, the NTCAT received additional evidence from both parties to the evidence before the NTCAT at first instance. The additional evidence related to the intragovernmental and funding arrangements for the supply of water to remote communities including Laramba. On the basis of that evidence, the NTCAT found that: (a) the PWC has sole responsibility for the supply of water to residences at Laramba; (b) the CEOH is not legally responsible for that supply of water, whether directly or pursuant to some agency or de facto arrangement with the PWC or the Northern Territory; and (c) the tenants (and other Laramba residents) were not charged for the supply of water to their residences.[4]
On 13 May 2022, the NTCAT confirmed the NTCAT’s decision at first instance dismissing the three applications.
Pursuant to s 141 of the Northern Territory Civil and Administrative Tribunal Act 2014 (NT), the tenants sought leave to appeal to the Supreme Court the NTCAT’s review decision. The proposed grounds of appeal were:
1The [NTCAT] failed to apply a correct understanding of s 48(1)(a) of the [RTA] by concluding that there is no breach of that obligation if:
(a) the cause of there being a risk of injury to health in the premises emanates from a third party or ‘external provider’;
(b) questions of health and safety are determined by reference to a standard of reasonableness that has determinative regard to who or what, other than the landlord, might be responsible for a risk of injury to health for those resident in the premises.
2The [NTCAT] failed to consider or evaluate a central element of the case, namely, the undisputed evidence that the tenants had no contractual or financial relationship with the company engaged by the landlord to supply water, which water was paid for by, and under an agreement with, that landlord.
On 6 September 2022, the Supreme Court allowed the tenant’s appeal, concluding (at [47]) that the NTCAT erred in law in holding that the quality of drinking water supplied to the residences in Laramba was not an issue of habitability within s 48(1)(a) of the RTA. The appeal was allowed (at [50]) on ground 1(a). The Supreme Court held (at [51]) that appeal ground 1(b) ‘is close to incomprehensible’ and, in any event, it would be inappropriate for the Supreme Court to decide arguments on that ground where the NTCAT had not yet heard and determined the parties’ cases in relation to the risk to health and/or safety as a result of the uranium content in the water. The Supreme Court (at [52]) did not consider it necessary to consider ground 2.
The CEOH appealed to this Court from the decision of the Supreme Court. The ground of appeal is that:
The Court below misinterpreted s 48(1)(a) of the [RTA] in determining, especially at paragraphs [43]-[45] and [47] of the Reasons, that the quality and safety of the water supplied by the [PWC] to the premises fell within the scope of the landlord’s obligation under that section.
The appeal seeks orders that the decisions of the NTCAT made on 13 May 2022 and 29 July 2020 are confirmed, with costs in this Court and the Supreme Court.[5]
In addition to their case in opposition to the appeal, the tenants have contended (by way of an amended notice of contention) that the Supreme Court’s orders should be upheld on ground 2 as set out above which was not addressed by the Supreme Court.
The issue/s for determination on this appeal
The order made by the Supreme Court was to set aside the NTCAT’s orders dismissing the parts of the applications relating to ‘the uranium in the water issue’ and to remit the matter back to the NTCAT for reconsideration consistently with the Supreme Court’s judgment, especially at paragraph [47].
At paragraph [47], the Supreme Court held that the NTCAT erred in law in holding that the quality of drinking water supplied to the tenants’ residences in Laramba was not an issue of habitability for the purposes of s 48(1)(a) of the RTA.
The Supreme Court arrived at that conclusion by the following process of reasoning (at [43]-[46]):
(a)If running water were not supplied to the tenants’ residences, the residences would not be habitable because they would not provide the applicants with ‘reasonable comfort’ in the Central Australian climate, citing Chief Executive Officer (Housing) v Young [2022] NTCA 1 (‘Young’) at [47]-[50].
(b)The CEOH’s obligation under s 48(1)(a) thus requires that it ensure that running water is supplied to the residences.
(c)Water is supplied to the residences by the PWC (through its subsidiary, IES).
(d)The CEOH knows, or must be taken to know, that water is supplied to the residences by the PWC (or a subsidiary). Water is supplied with the consent, express or implied, of the CEOH.
(e)It follows from these propositions that the quality of the water which the CEOH permits to be supplied to the residences is a habitability issue because it would make no sense if the CEOH were not required to ensure that the water supplied is safe to drink. That is a matter of ‘health and safety’ as it bears on habitability.
(f)The objective standard of reasonableness applied to the criterion of comfort or reasonable comfort in Young was incorrectly applied by the NTCAT to this criterion of ‘health and safety’, although it may still be relevant to determining the measures required to minimise or eliminate a real or potential risk, if one is identified.
The CEOH argued that this reasoning is wrong as a matter of law, both as to the conclusion that s 48(1)(a) of the RTA obliges the CEOH to ensure that running water is supplied to the residences and as to the conclusion that s 48(1)(a) obliges the CEOH to ensure that the water supplied is safe to drink, including but not only because the second conclusion depends on the first, incorrect, conclusion.
The tenants argued that the Supreme Court’s reasoning is wholly correct.
Section 48 of the RTA
The RTA is an Act to regulate the relationship of landlord and tenant under residential tenancy agreements and for related purposes (long title).
The RTA has various objectives, including to fairly balance the rights and duties of tenants and landlords (s 3(a)), to ensure that tenants are provided with safe and habitable premises under tenancy agreements (s 3(d)), and to facilitate landlords receiving a fair rent in return for providing safe and habitable accommodation to tenants (s 3(e)).
Section 48 of the RTA is located in Part 7, headed ‘Repairs and maintenance’, and in Division 1, headed ‘Landlord’s responsibilities’. Section 48 provides as follows:
48 Premises to be clean and suitable for habitation
(1) It is a term of a tenancy agreement that the landlord must ensure that the premises and ancillary property to which the agreement relates:
(a)are habitable;
(b)meet all health and safety requirements specified under an Ac that apply to residential premises or the ancillary property; and
(c)are reasonably clean when the tenant enters into occupation of the premises.
(2) It is not a breach of the term specified in subsection (1) if the failure to comply with the term is caused by:
(a)an act or omission of the tenant; or
(b)the tenant’s failure to notify the landlord of repairs required to the premises.
The term ‘tenancy agreement’ is defined to mean an agreement under which a person grants to another person for valuable consideration a right (which may be, but need not be, an exclusive right) to occupy premises for the purpose of residency (s 4).
The term ‘premises’ is defined to mean residential premises or part of residential premises to which a tenancy agreement relates or is to relate, but does not include premises leased principally for business purposes whether or not the premises may be used for residence under the lease (s 4).
The term ‘residential premises’ is defined to mean premises intended for occupation as a place of residence and includes a caravan intended for occupation as a place of residence and a houseboat intended for occupation as a place of residence (s 4).
The term ‘ancillary property’ is defined to mean: (a) ancillary real property, including a garden, not forming part of the premises; (b) fixtures; and (c) chattels, including but not limited to furniture, other household effects and a garden watering system, provided by the landlord either under the tenancy agreement or independently of the agreement for use by the tenant, but does not include common property within the meaning of the Unit Titles Act 1975 or Unit Title Schemes Act 2009 (s 4).
‘Habitable’
The term ‘habitable’ is not defined in the RTA. An indication of its meaning is found in the heading to s 48,[6] which refers to ‘premises’ being ‘suitable for habitation’.
‘Habitable’ includes both health and safety and reasonable comfort
As this Court observed in Young (at [33]), the notion of habitability has a long jurisprudential history and the concept of ‘habitability’ in general tenancy law has been transposed into statutes, including the RTA, with its base meaning remaining largely unchanged.
As this Court also held in Young (at [33], [43]-[46], [49]), the notion of habitability has two aspects or criteria: health and safety, and reasonable comfort. So much was not in dispute.
As a general and broad statement, adapted from this Court’s decision in Young (at [42]-[43]), it should be accepted that, for premises or ancillary property to be other than ‘habitable’ within the meaning of the RTA, they must be not reasonably suitable for occupation for residential use in that condition, whether by reason of safety, health or reasonable comfort.[7]
‘Habitable’ – Is the term confined to the premises or does it extend beyond?
The parties were at odds as to the reach of the concept of habitability and particularly as to its operation in respect of things emanating or sourced outside of the premises.
The CEOH argued, by reference to the terms ‘premises and ancillary property’ in s 48(1)(a), the subject matter of Part 7, being repairs and maintenance and defects, and the language of other surrounding provisions (ss 51(1)(b), 58(1), 60(a), 63(2)), that the concern to which s 48(1)(a) is directed is the physical property the subject of the tenancy agreement, curable by repair or maintenance, rather than ‘an untethered inquiry as to health and safety risks or the reasonable comfort of tenants’.
The tenants argued that whether premises are habitable is not confined by reference to whether the cause of the matter impacting habitability is within or external to the premises. Rather, it was said, a building may be uninhabitable, ‘whatever be the cause and whosesoever the blame’.[8]
Both parties relied on numerous authorities from the United Kingdom and (in the tenant’s case) the United States.
For example, the CEOH relied on the decision of the English High Court of Justice in Stanton v Southwick [1920] 2 KB 642 (‘Stanton v Southwick’). In that case, the tenant claimed damages against the landlord for breach of the condition implied by statute into the lease that the house be ‘reasonably fit for human habitation’. Shortly after letting, the premises were found to be overrun with sewer rats which intermittently entered from an old drain which ran under the premises. Salter J (Roche J agreeing) distinguished (at 645) this case from others in which it had been proved that the house was infested with bugs, as in Smith v Marrable (1843) 11 M&W 5. His Honour held (at 645-646) that the question was whether there was evidence on which it could be found that the house was infested with rats, in the sense that they bred there, were regularly there and ‘formed part of the house’. There was no such evidence because the evidence showed that the rats had their home in the sewer passing below the house from which they made incursions into the house in search of food.
This case was said by the CEOH to illustrate that the landlord’s obligation that premises be habitable does not extend to matters emanating from outside the premises, namely the rats making incursions into the premises from the sewer.
The tenants argued that Stanton v Southwick has been expressly disapproved, if not overruled, by the House of Lords in Summers v Salford [1943] AC 283. There, the House of Lords was dealing with whether a broken window sash in the only window of a bedroom in a two bedroom, four room house, meant that the landlord was in breach of the statutory condition that the premises be ‘in all respects reasonably fit for human habitation’. The House of Lords held that it did. In coming to that conclusion, only Wright LJ referred to Stanton v Southwick (at 295) and all that his Honour said was that, if he put himself in the position of the tenant, he agreed with the first instance judge, not the appeal court. His Honour added that the cases each turn on their particular circumstances. With that observation, we entirely agree. We do not accept that Stanton v Southwick has been overruled.
By way of example for the tenants, reliance was placed on Collins v Hopkins [1923] 2 KB 617. In that case, the tenant claimed damages from the landlord for breach of warranty implied into the tenancy by the common law that the premises be reasonably fit for habitation at the start of the tenancy. The day after the tenant moved in with his family, he found out that the landlord’s husband had recently lived in the house whilst suffering pulmonary consumption. McCardie J observed (at 620) that the implied warranty ‘tends in the most striking fashion to the public good and the preservation of public health’ and is to be ‘extended rather than restricted’. McCardie J posed the question (at 621) as follows:
Was there an actual and appreciable risk to the tenant, his family or household, by entering and occupying the house in which the infectious disorder had occurred? If the risk be serious, no one, I think, could doubt that the tenant may renounce. But in dealing with bacilli which may mean illness and death, I think further that an appreciable measure of actual risk justifies the tenant in throwing up his contract. A man should not be called on to expose his wife and children, household and himself to peril.
Amongst the matters to be considered are the nature of the disease; the degree and persistence of its infectivity; the date when the sufferer resided in the house; the steps taken to prevent risk of infection and the like.
On the evidence, McCardie J found (at 628) that there was a substantial risk that the house and its contents were so infected with the infectious bacilli when the tenant moved in as to constitute an actual danger to the tenant and his household, the house was unsafe for occupation, and as such the house was not reasonably fit for habitation.
This case was said by the tenants to illustrate that the landlord’s obligation that premises be habitable does extend to matters emanating from outside the premises, namely the pulmonary consumption bacilli emanating from the landlord’s husband.
The tenants also relied on Hall v Manchester Corporation (1915) 84 LJ Ch 732. This case concerned whether the appellant’s three adjoining houses were ‘unfit for human habitation’ as had been declared by the respondent council pursuant to a statutory power to make such a declaration, the effect of which was to prohibit the houses from being occupied. At first instance, it was held that the declaration could only be made where the unfitness was due to some structural or other defect existing in the building itself. It had been admitted that each house taken separately was fit for human habitation, and that their unfitness (a lack of ventilation) lay in their contact and proximity to each other. The enclosed yards were small in area, the passage leading into the yards was narrow and the houses surrounding the yards were two storeyed. The yards were ill-ventilated, the only access to air being the narrow passage or over the roofs of the buildings. The House of Lords concluded that the declaration was within the council’s power to make.
Atkinson LJ held (at 740):
...[I]t is impossible to confine the words of the section to an unfitness for human habitation due to structural defects in a house itself, or to defective internal physical conditions in a house itself. I think that those words include an unfitness due to external causes, such as want of ventilation, noxious effluvia, &c.
Parker LJ held (at 742):
Can a house be, within the meaning of the section, ‘unfit for human habitation’ for a reason extrinsic to itself; for example, because neighbouring buildings preclude the access of air and impair its proper ventilation? It was argued that a building could not be unfit for human habitation within the meaning of the section unless it was in itself, and without reference to surrounding circumstances, so unfit. I agree with the Court of Appeal that this construction cannot be maintained. The sole question in every case is whether the house is as a fact unfit for human habitation, and not in any case the cause of the unfitness.
Parker LJ added (at 743) that the standard to be applied to the phrase ‘unfit for human habitation’ is that of ‘the ordinary reasonable man’.
Sumner LJ held (at 743):
The section enables the [council] to declare a building to be ‘not fit for human habitation’ and thereupon to make its habitation an offence for which a heavy penalty may be imposed. It does not say from what causes the unfitness must arise. It does not specify who, if anybody, must be to blame. It is concerned with the building. ... Public health is the matter in hand, and public health seems to demand that a building which is in fact unfit to be inhabited should not be inhabited, whatever be the cause and whosesoever the blame. ... There is nothing [in the preamble nor the Act’s other sections] to confine the unfitness for habitation to unfitness due to something in the state or the construction or condition of the building itself, and I do not see why we should supply this. Why are we to suppose that the Legislature meant this concrete question to be considered in the abstract, as if the building stood in the midst of an imaginary desert and not in a particular street in a populous city?
This case was also said by the tenants to illustrate that the landlord’s obligation that premises be habitable extends to matters emanating from outside the premises, namely the lack of ventilation caused by the proximity of the other buildings.
The CEOH argued that Hall v Manchester was not a case regarding the operation of residential tenancies legislation; it was about public health and safety legislation. Further, it was a case about the nature of the premises themselves, which lacked proper ventilation.
Noting, as is well recognised in the authorities, that each case turns on its particular facts, the difficulty with seeking to define the limits of the concept of ‘habitability’ by drawing a distinction between impacts upon habitability arising from a matter within or without the premises is that it is possible to see each of the examples just referred to (and others in the authorities to which we were referred) as involving each of: (a) a problem with a source external to the premises; (b) which problem can be seen as a characteristic of the premises; and (c) which problem impacts upon the reasonable residential occupation of the premises by the tenant.
In Stanton v Southwick, the rats in the house came in from the sewer outside the premises. It was their presence in the house which impacted the tenant’s reasonable residential occupation of the premises. It could be said that the rats could only ingress the premises from the sewer because of the location of the premises proximate to the sewer drain and because the premises were not secure against rats. The external source of the problem can nevertheless be seen as of the premises.
In Collins v Hopkins, the pulmonary consumption bacilli was brought into the premises by the previous resident. The likely presence of the bacilli in the premises presented a substantial risk of infection to the tenant and his family residing there. The premises themselves were infected with the bacilli. The external source of the problem can be seen as of the premises.
In Hall v Manchester, the lack of ventilation in any particular house was caused by other buildings external to the premises. The lack of ventilation impacted upon the tenant’s residential occupation of that premises. The lack of ventilation was because of the location of the premises proximate to other buildings and the way the buildings as a group were constructed. Again, the external source of the problem can nevertheless be seen as of the premises.
This approach to the concept of habitability results in a conclusion which turns largely on the perspective with which one begins. If one begins with the perspective that the problem is external to the premises, that is likely the conclusion arrived at. If one begins with the perspective that the problem is internal to or of the premises, that is likely the conclusion arrived at.
It is an unhelpful way to approach the questions presently before this Court.
The implied term in s 48(1)(a)
It is of more assistance to consider the implied term in s 48(1)(a) of the RTA as a whole. Section 48(1) of the RTA implies into tenancy agreements an obligation that the landlord must ensure the things there set out, including that the premises are habitable.
Is the landlord’s obligation one of strict/absolute liability or one requiring reasonable steps?
There appear to be two potential constructions of the term implied by s 48(1)(a) of the RTA, namely that it imposes an obligation on the landlord of strict and absolute liability, or, that it imposes an obligation on the landlord which requires only the taking of reasonable steps.
This consideration is of assistance because the CEOH effectively sought to import into (thereby confining) the concept of ‘habitable’, factors which are usually considered when determining whether a duty to take reasonable steps has been breached. Equally, the tenants effectively sought to translate (thereby enlarging) the scope of the landlord’s obligation in s 48(1)(a) to the concept of ‘habitable’.
The first potential construction is that the implied term in s 48(1)(a) is breached when premises or ancillary property are or become uninhabitable, for whatever cause, and whether that cause is within or outside the power or capacity of the landlord to control or address. That construction, which appeared to be pressed by the tenants, is effectively one of strict or absolute liability, in relation to which the power or capacity of the landlord to control or address the issue is irrelevant.
The second potential construction is that the implied term is only breached to the extent that the landlord has power or capacity to control or address the cause affecting the safety, health and/or reasonable comfort of the tenant. That construction is effectively one the scope of which is dependent upon factors which include the nature and degree of the impact on or risk to the tenant, the power or capacity of the landlord to control or address the issue (including whether the issue is the responsibility of a third party) and the nature and degree of any skill or expertise involved in doing so. If this construction is correct, it points against confinement of the concept of ‘habitable’ pressed by the CEHO as the factors argued to confine it are matters which go to whether there is a breach, not the concept of ‘habitable’ itself.
In favour of the first construction, it could be argued that the intention of the legislature was that, in the broader interests of public health, safety and/or reasonable comfort, housing which is not reasonably suitable for occupation for residential use, whether by reason of safety, health or reasonable comfort, simply should not be occupied.
In favour of the second construction, it could be argued that the intention of the legislature was that the regulation of residential tenancies, which are founded in the contractual relationship between landlord and tenant, is to adopt a scheme of balanced and reciprocal rights between the two, and is not directed to imposing on landlords strict or absolute liability rendering them the insurers of tenants by distributing all risks to safety, health and reasonable comfort from tenants to landlords.
This constructional choice is assisted and informed by the decision of the High Court in Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313. In that case, the plaintiff, the child of the tenants, brought an action for damages in negligence against an independent contractor electrician, the electricity board and the landlord for personal injury caused by electrocution following repairs done on the premises by the electrician, who had been engaged by the landlord. At first instance, the plaintiff succeeded against the electrician and failed against the electricity board and the landlord. On appeal to the Court of Appeal from the dismissal of the action against the landlord, the appeal was allowed.
In the High Court, by a majority of 4:3, the appeal from that decision was dismissed. In the High Court, the plaintiff’s claim for damages was founded on a breach of a common law duty of care to the tenants and their family to ensure that the electrical system in the premises was safe, a breach of a non-delegable duty of care owed by the landlord in the repair work done on the premises, and on a breach of a statutory duty imposed by the Queensland equivalents to s 48(1)(a) of the RTA. Those statutes provided that the landlord had an implied obligation to provide and maintain the premises ‘in a condition reasonably fit for human habitation’ or ‘in good tenantable repair and in a condition fit for human habitation’. Nothing turned on the difference between these provisions.
The majority in the result (Brennan CJ, Toohey, Gaudron and McHugh JJ) held that the landlord had breached the duty of care the landlord admitted it owed to the plaintiff and was therefore liable to the plaintiff in negligence.
Four of the seven members of the Court (Brennan CJ, Dawson, Toohey and Gummow JJ) held that the statutory provisions did not create a tortious or contractual right in any person other than the tenant. Gaudron and Kirby JJ held that the statutory provisions did create a tortious right in the members of the tenants’ household. Five of the seven members of the Court (Dawson, Toohey, Gaudron, Gummow and Kirby JJ) held that the statutory provisions did not impose a duty on the landlord in respect of latent defects unknown to the landlord and of which the landlord could not reasonably be expected to have been aware.
Brennan CJ held (at 328-329) that the statutory provisions did not create any contractual right in the plaintiff against the landlord because the lease determined the right of a tenant as against a landlord with respect to the condition of the premises, but not the right of one whom the landlord allows to enter in some other capacity.
Dawson J held (at 343) that the landlord’s concession as to the existence of a duty of care to the plaintiff was properly made having regard to the obligation implied into the tenancy agreement between the landlord and the plaintiff’s parents to maintain the premises in good tenantable repair and in a condition fit for human habitation. Further, the obligation of the landlord as to the premises under the statutory provisions was sufficient to justify the relationship between the plaintiff and the landlord being regarded as sufficiently proximate to give rise to a duty of care under the ordinary principles of negligence to take reasonable care to avoid foreseeable risk of injury to the plaintiff.
Toohey J agreed (at 348) with Gummow J that the statutory provisions did not provide a cause of action upon which the plaintiff could recover damages against the landlord. His Honour also held (at 352-353) that the statutory provisions were relevant to the existence of a non-delegable duty of care under the general law which could not be discharged simply by engaging an independent contractor to do the work, because there was control in the landlord and a special vulnerability in the plaintiff. His Honour agreed (at 355) with the observation of the President of the Court of Appeal that the statutory provisions could not be intended to derogate from a fundamental requirement of basic safety.
Gaudron J agreed (at 363) with Gummow and Kirby JJ that the statutory provisions did not impose an absolute liability on the part of the landlord in relation to the safety of the premises. Rather, her Honour held, the expression ‘reasonably fit for human habitation’ indicates a duty to exercise reasonable care and skill in providing and maintaining premises in a safe state. Consequently, the provisions did not give rise to an obligation which, in the circumstances, was different from the landlord’s common law duty of care.
McHugh J held (at 369) that the landlord owed a non-delegable duty of care to the plaintiff in relation to the repairing of the stove, including because of the duties under the statutory provisions.
Gummow J took guidance (at 373) from the decision of the House of Lords in Summers v Salford as to the meaning of the statutory provisions, particularly the adoption of Atkin LJ’s statement in Morgan v Liverpool Corporation [1927] 2 KB 131 at 145 that, if the state of repair of a house is such that by ordinary user damage may naturally be caused to the occupier, either in respect of personal injury to life or limb or injury to health, then the house is not in all respects reasonably fit for human habitation. His Honour held (at 373-374) that, after the negligent electrical repairs had been made, the state of repair of the premises was such that, by ordinary use, personal injury would be caused to the occupier, and so the premises were not reasonably fit for human habitation within the statutory provisions. However, his Honour held that it did not necessarily follow that the plaintiff succeeded in her claim for damages because the next questions were whether the defective condition of the premises involved a breach by the landlord of the obligation and, if so, whether the plaintiff who was not the tenant could bring an action to recover loss occasioned by the breach. His Honour undertook a review of English and Canadian decisions relating to similar statutory provisions. His Honour cited (at 381) the observation of Jones JA of the Nova Scotia Supreme Court of Appeal in Gaul v King (1979) 103 DLR (3d) 233 at 243 that the statutory provisions did not impose an absolute liability and did not cover latent defects which could not be discovered by the exercise of reasonable care and skill; that construction would not impose an undue hardship on the landlord and would afford a reasonable measure of protection to the tenant; and the object of the legislation is to provide reasonable standards for rental premises, which does not mean that the legislature intended that lessors should be insurers. Justice Gummow concluded (at 382-383, 384-385) that the statutory provisions imposed an obligation upon the landlord, contractual in nature between the landlord and the tenant, to which the plaintiff was not a party, and there was no obligation under the statutory provisions, even in favour of the tenant, in respect of latent defects unknown to the landlord and of which the landlord could not reasonably be expected to have been aware. His Honour adapted what was said by Jones JA in Gaul v King and said that the object of the statutory provisions was to provide reasonable standards for rental premises, rather than to render lessors insurers.
Kirby J held (at 412, 413), following the decision in Gaul v King and other Canadian decisions, that the statutory provisions did give rise to a right in the plaintiff, as a member of the tenants’ household, to enforce the benefit of the implied term, notwithstanding that she was not party to the tenancy agreement. His Honour held (at 414) that the duty to provide and maintain premises in a condition fit for human habitation was not dependent upon the tenant giving the landlord notice of the relevant defect. His Honour referred (at 414) to the arguments in favour of construing the landlord’s liability under the statutory provisions as absolute rather than as restricted to ensuring that the condition of the premises is fit for human habitation to the extent that it is reasonable to expect of a landlord of such premises. Those included the apparently unqualified and objective expression ‘fit for human habitation’; the absence of the word ‘reasonably’; the protective purpose of the statutory provisions; and the policy argument that the imposition of an absolute duty is the only effective way of ensuring that the purpose of avoiding the provision of dwelling houses unfit for human habitation is fulfilled. However, his Honour was driven (at 415-416) to the opposite conclusion because: (a) the obligation was effected by the introduction of an implied term into an agreement between the landlord and the tenant which exists against the background of the common law, such that if the obligation was an absolute one, it might have been expected that the legislature would have said so, noting the obligation must be given content in circumstances where the landlord is usually out of occupation; (b) the other obligations implied by the statutes indicated, not that the obligations of landlord and tenant were absolute duties, but that the governing words ‘provide and maintain’ are modified to include ‘to the extent that is reasonable’; (c) the Canadian authorities had held a statutory cause of action extending to the tenant’s immediate family had been construed as one imposing a general duty of reasonable care, not an absolute duty (citing Gaul v King); and (d) had it been intended to impose upon landlords a strict and absolute liability, as of an insurer, this would have been done in a provision differently written given it was such a substantial enlargement of landlords’ obligations and liabilities. Thus, his Honour held (at 416) that if the premises were not fit for human habitation, that was not by reason of a breach on the part of the landlord of the obligation to provide and maintain the premises in the condition required.
This case did not decide, directly, the scope and content of the landlord’s obligation to the tenant under a provision like s 48(1)(a) of the RTA. However, four members of the High Court (Gummow J (with whom Toohey and Gaudron JJ agreed) and Kirby J (with whom Gaudron J agreed)) concluded that the landlord’s contractual obligation to the tenant to provide and maintain the premises in a condition fit for human habitation was not a strict and absolute liability, but was only an obligation to take reasonable steps to do so. Consequently, those members of the High Court concluded that the fact (if it be established) that the premises were not in a condition fit for human habitation was not, per se, a breach of the landlord’s obligation. A breach of the implied term would have only occurred if the landlord had failed to take reasonable steps to provide and maintain the premises in that condition.
In our view, those conclusions and the reasoning upon which they are founded are readily applicable to the term implied into tenancy agreements by s 48(1)(a) of the RTA.
Effect of the words ‘must ensure’
It is noted that s 48(1)(a) provides that the landlord ‘must ensure’ that the premises are habitable.
In National Disability Insurance Agency v WRMF (2020) 276 FCR 415, the Full Court of the Federal Court held (at [65]) that a statutory requirement imposed on a tribunal to ‘ensure’ that a party before it is afforded a reasonable opportunity to present its case meant that the tribunal ‘is not a passive by-stander in the hearing’. The tenants argued that this supported the construction that the landlord could not fulfil its obligation under s 48(1)(c) by simply relying on an external service provider to supply safe water to the premises. Given the very different statutory context, this case is of little assistance in determining whether the landlord’s obligation under s 48(1)(a) of the RTA is one of strict or absolute liability.
In Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304, the High Court considered the operation of occupational health and safety legislation that provided that, where any structure was to be erected, the person who designed it ‘must ensure so far as reasonably practicable’ that the structure was designed so that the persons erecting it were safe from injury and risks to health. In rejecting the submission that the designer had failed to comply with the statutory duty where the structure had not been erected in accordance with the design, Gleeson CJ, Gummow and Hayne JJ held (at [37]) as follows:
... The appellants stressed the presence of the term ‘must ensure’. However, the requirement is one of ensuring safety ‘so far as is reasonably practicable’. The requirement applies to matters which are within the power of the designer to perform or check, such as ascertaining what use the structure will be put to, what loads it will experience when being built and the nature of the location in which it is to be erected. This is in contrast to the matters that would be forced within the ambit of this requirement were the submissions for the appellants accepted; for then a designer would be required to take account of factors outside the power of the designer to control, supervise or manage, such as the procedures to be adopted during construction.
Callinan J held (at [87]) that the statute imposed a higher duty upon a designer than the common law, which consequence was produced by the words ‘must ensure’.
To the extent that the tenants relied on the plurality’s expressed agreement (at [39]) with the analysis of Callinan J, we note that their Honours’ expressed agreement was with Callinan J’s analysis regarding the onus of proof (at [92]-[98]), which analysis did not turn, in any way, on the words ‘must ensure’. To the extent that the tenants relied on the observations of Gaudron J (at [51]) that the statutory duty was greater than the common law duty in negligence, and was a duty to protect against all risks to construction workers, if that was reasonably practicable, we note that Gaudron J was in dissent and her Honour’s observations are inconsistent with those set out above.
Again, given the different language and context of the statute in issue there, this case is of little assistance.
In any event, neither case detracts from anything said in Northern Sandblasting v Harris. In particular, we do not accept that the words ‘must ensure’ impose any higher duty than the words ‘provide and ... maintain’ contained in the residential tenancies legislation considered in that case.
Contextual considerations
Support for the application of the conclusions reached in Northern Sandblasting v Harris to s 48(1) of the RTA is also found in the other provisions of the RTA which can operate in relation to premises which are not habitable within the meaning of s 48(1)(a).
First, s 48(2) of the RTA provides that it is not a breach of the implied term in s 48(1) if the failure to comply is caused by an act or omission of the tenant, or the tenant’s failure to notify the landlord of repairs required to the premises. This confinement of the scope of the landlord’s duty under s 48(1) supports the proposition that it is not absolute or strict.
Secondly, ss 86(c) and 92(c) permit the landlord and tenant respectively to terminate the tenancy by two days’ written notice if the premises have become uninhabitable. These powers to terminate turn on the premises becoming uninhabitable per se, not upon the landlord’s breach of the implied term in s 48(1). Thus, if the premises become uninhabitable, both the landlord and the tenant may elect to terminate the tenancy, or not, regardless of whether the condition of the premises is a consequence of the landlord’s or the tenant’s act or omission.
Alternatively to termination, s 60 of the RTA provides that, if the premises are uninhabitable or unsafe due to disrepair, the tenant may elect (in certain circumstances) to have the premises or ancillary property repaired. Additionally, s 63 of the RTA provides that a tenant may apply to the NTCAT for an order that the landlord ‘ensure’ that specified ‘emergency repairs’ are made to the premises.
These provisions show that premises which become uninhabitable during a tenancy may nevertheless continue to be occupied by the tenant, with both the landlord and the tenant having the option to quit on short notice. This supports the distinction between the concept of habitability per se and a breach of the landlord’s duty in s 48(1)(a), and that the latter is not established simply by showing the former.
By s 47(a) of the RTA, it is an offence, punishable by a fine, for a landlord to enter into, or offer to enter into, a tenancy agreement unless the premises and ancillary property are habitable. It is by this means that the RTA achieves the policy objective of ensuring that residential premises which are not habitable are not occupied for residential purposes.
Finally, the RTA confers a power on the NTCAT to order compensation for loss or damage suffered by the tenant to be paid by the landlord because the landlord has failed to comply with the tenancy agreement (s 122(1)). Such compensation may not include compensation in respect of death, physical injury, pain or suffering (s 122(5)(a)). Again, s 122(5)(a) contains a limitation on the extent of the landlord’s liability. Further, in contrast with the other provisions referred to above, the right to compensation for loss or damage arises on the landlord’s breach of the tenancy agreement, which must include the implied term in s 48(1)(a). This also supports the distinction between the concept of habitability and a breach of the landlord’s duty in s 48(1)(a), and that the latter is not established simply by showing the former.
Conclusions as to ‘habitable’ and the landlord’s duty under s 48(1)(a)
It follows from the above that the question whether premises or ancillary property are ‘habitable’ does not turn on the landlord’s power or capacity to control the matter affecting habitability or whether that matter emanates from within or external to the premises, as those are matters directed to whether or not the landlord has breached its duty under s 48(1)(a).
Rather, as set out in paragraph [34] above, for premises or ancillary property to be other than ‘habitable’ within the meaning of the RTA, they must be ‘not reasonably suitable for occupation for residential use in that condition, whether by reason of safety, health or reasonable comfort’. Where the issue is one of safety or health, premises will be other than habitable where there is an actual and appreciable risk to the health and/or safety of the tenants in their ordinary residential day to day use of the premises.[9]
Further, if premises are not habitable, the question may then arise as to whether the landlord has breached the term implied into the tenancy agreement by s 48(1)(a) of the RTA. That question has arisen in this case because the tenants have sought compensation under s 122 of the RTA (which permits compensation for a breach by the landlord of the terms of the tenancy agreement) and what are said to be orders ancillary to a finding by the NTCAT in that respect.
While we are not called upon to decide whether the NTCAT would have power to make such ‘ancillary orders’ in this matter, we note that the orders sought would now appear to be futile given that the PWC (though IES) has now installed a water treatment plant which has lowered the concentration of uranium in the water supplied by it to the community of Laramba and the residences the subject of these proceedings.
Whether or not the landlord has breached the implied term in s 48(1)(a) turns on whether the uninhabitable condition of the premises (assuming that be established) was a consequence of the landlord’s failure to take reasonable steps to ensure that the premises or ancillary property were habitable. That consideration involves questions as to the nature and degree of the risk to or impacts upon the health, safety and/or reasonable comfort of the tenants, the measures available to the landlord to alleviate the risks or impacts, the capacity and power of the landlord to control or address those risks or impacts and the nature and extent of any expertise or special skill involved.
The decision of the Supreme Court appealed from
We turn then to the decision of the Supreme Court from which this appeal is brought.
The first matter is whether the Supreme Court erred in the conclusion (at [43.1]) that, if running water were not supplied to the tenants’ premises, they would not be habitable within the meaning of the RTA.
We consider that this conclusion discloses no error in the circumstances of this case. Those circumstances are that the premises are located in Central Australia. The premises are plumbed and fitted out with taps, toilets and other fittings designed to distribute and provide, within the premises, water for use by the occupants of the premises in their ordinary residential activities of day to day living. The premises are connected via pipes to a town water supply. That town water supply is provided to the community of Laramba via infrastructure operated and managed by the entity (PWC, through its subsidiary EIS) with statutory functions and responsibility to acquire, store, treat, distribute, market and otherwise supply water for any purpose and to undertake, maintain and operate any works, system, facilities, apparatus or equipment required for such purpose.[10] The town water supply is sourced from groundwater, the health and safety of which is the statutory responsibility of the Chief Health Officer.[11]
In those circumstances, if water was not supplied to those residences, at least for a period of time sufficiently significant to impact upon the reasonable comfort of the tenants, they would not be habitable because the premises would not provide reasonable comfort to the tenants.
The period of time is relevant because it must be accepted that, in the ordinary course of the provision of an essential service such as water in accordance with statutory responsibilities to do so, there may be interruptions to that supply from time to time, as a consequence of, for example, maintenance and works on infrastructure, breakdowns and damage to infrastructure, and/or environmental factors or natural disasters, which affect supply.
The second matter is whether the Supreme Court erred in the conclusion (at [43.2]) that s 48(1)(a) of the RTA obliges the CEOH to ensure that running water is supplied to the tenants’ premises.
For the reasons already explained, properly understood, s 48(1)(a) is not an obligation of strict or absolute liability, but an obligation to take reasonable steps to ensure the habitable condition of the premises. Importing that understanding into the Supreme Court’s conclusion, particularly the word ‘ensure’, the conclusion is not in error.
The conclusions in paragraphs [99] and [103] above do not render the CEOH (or any other landlord in the Northern Territory) liable, without more, for any disruption to the water supply or any corruption of the water supplied, even for periods of time which do impact upon the reasonable comfort of the tenants. As already explained, the question whether such disruption or corruption constitutes a breach of the landlord’s obligation in s 48(1)(a) requires a finding that the premises are not habitable, but requires more than that because the landlord’s obligation is to take reasonable steps to ensure the habitable condition of the premises.
The third matter is whether the Supreme Court erred in holding (at [44]) that it follows from the earlier conclusions that the quality of the water which the CEOH permits to be supplied to the premises is a habitability issue, and (at [45]) that the CEOH is obliged to ensure that the water supplied by the PWC is safe to drink, because it is a matter of health and safety.
Again, for the reasons already explained, the quality of the water which the CEOH permits to be supplied to the residences is ‘a habitability issue’ in the sense that, in the circumstances of this case, it may give rise to a finding that the residences were not habitable. That conclusion is not in error. Further, properly understood, s 48(1)(a) is not an obligation of strict or absolute liability, but an obligation to take reasonable steps to ensure the habitable condition of the premises. Importing that understanding into the Supreme Court’s conclusion, particularly the word ‘ensure’, the conclusion is not in error.
If the uranium levels in the water supplied to the premises posed an actual and appreciable risk to the health and/or safety of the tenants in their ordinary residential day to day use of the premises, then those premises would not be habitable. It is not relevant to that determination whether or not the water is supplied by a third party with statutory responsibility for the supply of essential services such as water.
However, for the reasons explained above, where the relief sought by the tenants turns on whether or not the landlord has breached the obligation in s 48(1)(a) of the RTA, determination of that question (the breach) will depend on not only whether the premises were not habitable, but whether the landlord took reasonable steps to ensure the habitability of the premises. Relevant to that assessment will be various matters, including the fact that the water was supplied by a third party with statutory responsibility and particular skill and expertise for doing so.
As acknowledged by the Supreme Court (at [46]-[48]), both of those matters are yet to be determined.
It follows that the Supreme Court’s conclusion (at [47]) that the NTCAT erred in law in holding that the quality of the drinking water supplied to the tenants’ premises in Laramba was not an issue of habitability for the purposes of s 48(1)(a) of the RTA was not in error.
The appeal will be dismissed.
The orders made by the Supreme Court included an order remitting the matter back to the original jurisdiction of the NTCAT for reconsideration with the recommendation that the tenants’ applications ‘be determined consistently with this Court’s judgment in Pepperill v CEO (Housing) [2023] NTSC 90, particularly at paragraph [47]’.
Given that this Court has now determined this appeal, we consider it appropriate to vary the order made by the Supreme Court to recommend that the NTCAT determine the tenants’ applications consistently with this Court’s judgment.
Notice of contention
By their amended notice of contention, the tenants contended that the Supreme Court should have decided a matter in their favour, namely that (as contended under their ground 2 in the Supreme Court), the NTCAT failed to consider or evaluate the central and undisputed evidence that the tenants had no contractual or financial relationship with the company engaged by the CEOH to supply water, which water was paid for by, and under an agreement with, the [CEOH].
The tenants’ position on this appeal was that, if this Court was satisfied that the appeal should be dismissed, there was no need for us to address the notice of contention.
We are so satisfied. However, given that we have drawn some conclusions about the content and effect of s 48(1)(a) of the RTA which were not specifically expressed by the Supreme Court, and lest we be wrong in our conclusion about the appeal, we will also deal briefly with the notice of contention.
The notice of contention is directed to the conclusion of NTCAT on the review that there was no evidence that the CEOH had accepted some responsibility, de jure or de facto, for the supply of water by the external (i.e. third party) entity.[12] The NTCAT said:
...[A] landlord may bear responsibility for the quality of water and other utilities under the concept of habitability. ... [E]xamples of where this may occur [is] a landlord’s provision of water from a tank.
Another example ... might be where a landlord such as the [CEOH] accepts some responsibility, de jure or de facto, in the context of a residential tenancy arrangement, for the supply of water by an external entitle such as the [PWC]. However, on the evidence before us that is not the case here.
The tenants argued that there was evidence of this, it was a central tenet in the tenants’ case, and that the NTCAT’s conclusion to the contrary was an error of law for failure to properly address that evidence.
In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, the Full Court of the Federal Court held (at [49]-[50]) that:
The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made ... Representing as it does what the Tribunal itself considered important and material, what is present – and what is absent – from the reasons may in a given case enable a Court on review to find jurisdictional error ...
... The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.
In Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, Kiefel CJ, Keane, Gordon and Steward JJ held (at [27]):
None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision maker’s reasons disclose that the decision maker ignored, overlooked or misunderstood relevant facts and materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error. [citations omitted]
To establish that the proposition that the CEOH had accepted responsibility for the supply of water to the tenants’ premises because the water was paid for by and under an agreement with the CEOH was a central tenet in their case. The tenants argued, by reference to a document provided to the NTCAT, that they had sought such a finding of fact and identified the source of the evidence.
That document[13] contained 23 findings of fact sought, the last five of which were to the effect that there was no contractual or other financial relationship between each tenant and the PWC (or IES) concerning water and the premises; each tenant did not pay for the supply of water or the quantum of water to the premises; and the rent paid by the tenants went into the bank account of the government department with responsibility for housing.
It is by no means apparent from that document that a central tenet of the tenants’ case was that the water supplied to the premises by the PWC subsidiary was paid for by, and under agreement with, the CEOH. Indeed, the document asserts findings of fact that the department of the Northern Territory government with primary responsibility for housing was responsible for co-ordinating and funding the supply of water to Laramba by the PWC or IES. Bearing in mind that the CEOH is not the Territory or the Crown, but a separate juridical person,[14] these asserted facts are inconsistent with the fact now said to have been open on the evidence before the NTCAT.
The evidence said to source the above findings of fact was an unattested declaration of the tenants’ solicitor dated 25 January 2022.[15] The thrust of that declaration is that, by reference to conversations with the tenants and various publicly available documents, such as Administrative Arrangements Orders, an Annual Report of IES, and the transcript of a meeting of the Legislative Assembly Committee on the Northern Territory’s Energy Future, the tenants do not pay anyone for water supplied to the premises, the government departments responsible for the provision of essential services in remote Aboriginal communities and the Housing Act 1982 (NT) were the same for various periods, IES was contracted to deliver essential services to remote Aboriginal communities on behalf of the Northern Territory government, IES charged non-residents (such as government employees) of remote Aboriginal communities for the supply of essential services (such as water) but did not charge residents of those communities, and rent paid by the tenants was paid to the government department.
The Annual Report of IES states:[16]
The Company recognises revenue from three major sources being the provision of electricity, water and sewerage services to 72 remote communities and 79 outstations. The Company also receives operational recurrent grant funding from the Northern Territory Government to supplement the revenue that the Company generates through the sales of electricity, water and sewerage services to remote communities.
There is no suggestion in this material per se, nor could any rational inference be drawn from it, that the CEOH paid or pays for water supplied to the tenants’ premises under an agreement with the PWC subsidiary.
Given that the document in which the tenants set out the findings of fact they sought in the NTCAT did not contain the fact asserted in the notice of contention and the findings of fact therein were actually inconsistent with that asserted fact, and that the evidence of the asserted fact referred to does not contain the asserted fact nor permit an inference of it, it is unsurprising that the NTCAT dealt with the matter briefly. The evidence was neither pertinent nor contradictory and did not require any weighing or preference. Consequently, we do not accept that the NTCAT ignored, overlooked or misunderstood relevant facts and materials or a substantial and clearly articulated argument, or misunderstood the case being made by the tenants. In any event, given the established legal distinction between the Northern Territory government (and its departments) and the CEOH, the finding asserted in the notice of contention was not open.
The error asserted in the tenants’ notice of contention is not established. The notice of contention will be dismissed.
Disposition
We make the following orders:
1.The appeal is dismissed.
2.The amended notice of contention is dismissed.
3.The order made by the Supreme Court remitting the matter back to the Northern Territory Civil and Administrative Tribunal is varied to replace the reference to the Supreme Court’s judgment with reference to this Court’s judgment: Chief Executive Officer (Housing) v Pepperill & Ors [2024] NTCA 10.
We will hear the parties as to costs.
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[1] Those provisions permit the NTCAT to ‘make any other order it considers appropriate’ despite the fact that a specific order is sought by the applicant (s 64) and to impose conditions on its decision and to make an ancillary order or direction the NTCAT considers appropriate for achieving the purpose for which the NTCAT may exercise the power to make a decision (s 67).
[2] The reasons of the Supreme Court refer only (at [3]) to the first order sought by the tenants. The tenants’ applications to the NTCAT are not before this Court. That the tenants also sought an order for compensation is confirmed in the NTCAT’s decision in Various Applicants from Laramba v Chief Executive Officer (Housing) [2020] NTCAT 22 at [6].
[3] Various Applicants from Laramba v Chief Executive Officer (Housing) [2020] NTCAT 22.
[4] Various Applicants from Laramba v Chief Executive Officer (Housing) [2022] NTCAT 3 at [12], [44].
[5] Amended Notice of Appeal filed on 14 June 2024.
[6] The heading to the section is part of the Act: s 55(2)(a), Interpretation Act 1978 (NT).
[7] This is effectively an amalgam of the passage from Woodfall, Landlord and Tenant 28th ed, [1-1477] cited with approval at [42], and the passage from Finn v Finato [2004] NSWCTTT 179, cited with approval at [43].
[8] Citing Hall v Manchester Corporation (1915) 84 LJ Ch 732 at 743 per Sumner LJ.
[9] Adopting the test expressed by McCardie J in Collins v Hopkins.
[10] Section 14A(1)(a) and (c), Power and Water Corporation Act 1987 (NT).
[11] Sections 29, 32, 133(2)(d), Power and Water Corporation Act 1987 (NT).
[12] See Various Applicants from Laramba v Chief Executive Officer (Housing) [2022] NTCAT 3 at [59], referred to by the Supreme Court at [21].
[13] Appeal Book (‘AB’) 513-514.
[14] See Jack v Chief Executive Officer (Housing) (No 2) [2021] NTSC 81 at [36], [43]-[45] per Grant CJ.
[15] AB 168-174.
[16] AB 234.
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