Davis, Colin Peter v Northern Territory Housing Commission

[1984] FCA 86

Re: COLIN PETER DAVIS
And: NORTHERN TERRITORY HOUSING COMMISSION (1984) 71 FLR 85
No. NTG 37 of 1983
Action against statutory authority - Statutes

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY OF AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey(1), McGregor(2) and Fitzgerald(3) JJ.

CATCHWORDS

Action against statutory authority - Northern Territory Housing Commission - practice and procedure - striking out statement of claim - requirment of notice and limitation period - claim for damages for personal injuries by tenant - whether claim for things done or omitted to be done under Act - failure to exercise statutory power not omission under Act

Housing Act 1959 ss. 12, 12A, 26, 31, 35

Tenancy Act s.55

Rules of the Supreme Court of the Northern Territory 0.23 r.15 029, r.4.

Statutes - Constuction - Whether breach of duty at common law "anything done or omitted" under Act constituting Housing Authority - Housing Act 1959 (N.T.) s. 35.

HEADNOTE

Held: An action for breach of implied covenants arising from a tenancy agreement or implied by the Tenancy Act 1979 (N.T.) s. 55 to keep the common parts of a block of flats in a clean and safe condition or in good repair and of a breach of duty owed to an invitee is not an action "for anything done or intended to be done or omitted to be done for or on behalf of (the respondent) under (the Housing Act 1959 (N.T.)" within the meaning of s. 59 of that Act, notwithstanding that under the Act the function of providing residential accommodation is vested in the respondent. Such duties as are pleaded do not arise under the Housing Act.

Knight v. Concord Municipal Council (1970) 3 N.S.W.L.R. 295, not followed.

Tesco Supermarkets Ltd v. Nattras (1972) A.C. 153; Trade Practices Commission v. Tubemakers of Australia Ltd (1983) 5 T.P.R. 321; Peisley v. Ashfield Municipal Council (1971) 23 L.G.R.A. 166; Heathwood v. Murgon Shire Council (1941) Q.S.R. 275; Bradford Corporation v. Myers (1916) 1 A.C. 242; Varga v. Jongen (1970) 72 S.R. (N.S.W.) 673; Board of Fire Commissioners of New South Wales v. Ardouin (1961) 109 C.L.R. 105; Fairman v. Perpetual Investment Building Society (1923) A.C. 74; Dunster v. Hossil (1918) 2 K.B. 795; Lamb v. Moss (1983) 49 A.L.R. 533; Benson v. Commissioner for Road Transport & Tramways (1935) 35 S.R. (N.S.W.) 348; Firestone Tire & Rubber Co. (S.S.) v. Singapore Harbour Board (1952) A.C. 452.

HEARING

Darwin, 1984, April 2, 6. #DATE 6:4:1984

G. E. Hiley, for the appellant.

S. A. Lewis, for the respondents.

Cur. adv. vult.

Solicitors for the appellant: Waters James & O'Neil.

Solicitor for the respondent: J. B. O'Rourke, Crown Solicitor for the Northern Territory.

G.F.V.

ORDER

1. The appeal be allowed.

2. The judgment of the Supreme Court of the Northern Territory of Australia dated 28 October 1983 striking out the statement of claim and directing that judgment be entered for the respondent be set aside.

3. The respondent's chamber summons dated 23 September 1983 be dismissed.

4. The respondent pay the costs of the chamber summons in the Supreme Court of the Northern Territory of Australia and the costs of this appeal.

Appeal allowed with costs.

JUDGE1

This is an appeal from a judgment of the Supreme Court of the Northern Territory ordering that the appellant's statement of claim be struck out and that judgment be entered for the respondent.

The point at issue is a short one but not free from difficulty.

The respondent is a statutory body established by the Housing Act 1959 ("the Act"). By reason of s.12 of the Act its functions are:

"(a) to provide and assist in the provision of residential accommodation; and

(b) to provide accommodation, residential, office, industrial or other, for the Commonwealth and the Territory public purposes".

Section 12A of the Act gives the respondent power inter alia to:

"(c) build on land, including land held by a private person;

(d) repair, alter, extend, renovate, equip, furnish or otherwise affect premises;

(e) let premises;

. . .

(g) maintain, manage and control premises;"

The appellant sued the respondent as a result of a fall sustained by him on or about 4 October 1980 when he was walking down steps on a stairway adjacent to the tenants' car park of the respondent's Kurringal Flats at Fannie Bay. The appellant was a tenant of those premises from the respondent under a written agreement.

In his statement of claim the appellant pleaded a number of causes of action which may be summarised in this way.

1. Breach of an implied covenant, arising from the tenancy agreement, to keep the common parts and facilities of the flats in good repair and in proper lighting (para. 3).

2. Breach of a covenant, implied by reason of s.55 of the Tenancy Act, imposing on the respondent, as landlord of the flats, an obligation to keep any common areas in a clean and safe condition (para. 9).

3. There were further pleas based upon the respondent's occupation of the common areas of Kurringal Flats. It was alleged that the appellant "had a right to use such common areas"(para. 6) and, as a further or alternative plea, that he was "an invitee upon the land". It is not clear whether these allegations were said to constitute one or two causes of action.

After lodging an appearance, the respondent applied for an order that the writ and statement of claim be set aside or dismissed as failing to disclose a reasonable cause of action and that judgment be entered for the respondent. The basis of the application lay in s.35 of the Act which reads:

"35. NOTICE OF ACTION

(1) An action shall not be brought against the Commission or a member or servant or agent of the Commission for anything done or intended or omitted to be done for or on behalf of the Commission under this Act, until the expiration of one month after notice in writing has been served on the Commission or person to be sued, clearly stating the cause of action and the name and place of abode of the intended plaintiff and of his solicitor or agent.

(2) On the trial of such an action, the plaintiff shall not be permitted to go into evidence of any cause of action which was not stated in the notice so served.

(3) Unless such notice is proved, the Court shall find for the defendant.

(4) Such an action shall be commenced within the 12 months next succeeding the accruing of the cause of action, and not afterwards.

(5) A person to whom such notice of action is given may tender amends to the plaintiff or his solicitor or agent at any time within one month after service of the notice and, if the tender of amends is not accepted, may plead the tender."

It was common ground that no notice had been served on the respondent pursuant to sub-s.35(1) and that action had not been commenced within 12 months of accrual of the cause of action. Nevertheless, the absence of a defence to the statement of claim has some unsatisfactory features in the present case.

Order 29 Rule 4 of the Supreme Court Rules empowers a judge to strike out a statement of claim on the ground that it discloses no reasonable cause of action. The court is empowered, in such a case, to order the action to be dismissed and judgment entered accordingly. For the purpose of such an application the respondent must be taken to have admitted the allegations in the statement of claim including the duties said to have been imposed on it under the tenancy agreement, pursuant to the Tenancy Act and at common law. It was not for the appellant to anticipate a plea that the claim was statute barred by sub-s.35(4) of the Act; nor did he do so. That was a matter to be raised (if at all) by the respondent in its defence. See Order 23 Rule 15. It would then be open to the appellant to plead estoppel or some other answer to the limitation plea, if indeed any answer was available.

The bringing of an application to strike out a statement of claim on a ground that arises only from a defence to be filed is premature. On the other hand, having regard to the language of sub-ss.35(2), (3) and (4), it was, I think, incumbent on the appellant to plead the giving of notice; the absence of such a plea justified the bringing of the application on that ground.

Counsel for both parties asked that the Court deal only with the point of substance. The fact remains that the Court must approach the question whether s.35 is available to the respondent on the basis that the allegations in the statement of claim are admitted.

The argument of the appellant before the Supreme Court and before this Court was that his action against the respondent was not "for anything done or intended or omitted to be done for or on behalf of the Commission under this Act".

The Supreme Court rejected that argument on the basis that the respondent was the creature of the Act; that it could only build flats under the Act; that in maintaining, managing and controlling flats it was exercising rights and powers given to it under the Act; and that the acts and omissions pleaded in the statement of claim were things done or omitted to be done under the Act.

A reading of para. 8 of the statement of claim, where the respondent's breach of duty is particularised, shows that the case against the respondent was essentially one of things omitted to be done - failing to keep the stairway clean, causing or permitting it to be unsafe in that puddles of water accumulated, causing or permitting the steps to become smooth, shiny, slippery and chipped on the edges, failing to ensure that water from the laundry above did not run down the steps to form puddles, failing to provide handrails, failing to provide adequate lighting over the steps. The references to "causing" do have positive overtones.

For the purposes of the application before the Supreme Court and before this court, the question is whether the matters particularised were things done or omitted to be done for or on behalf of the respondent under the Act.

The appellant advanced several arguments in support of his case that sub-s.35(1) had no application to his claim.

1. He had sued the respondent for acts or omissions by it, not for or on behalf of it.

2. He had not sued for any thing done or omitted to be done under the Act. The Act conferred powers on the respondent; it did not impose duties.

3. He had sued for things done or omitted to be done in breach of a duty arising from the common law or from the Tenancy Act, not from the Act.

4. The matter could be tested by asking whether the appellant had sued for a failure on the part of the respondent to perform a duty owed to the public or one owed to the appellant as a tenant of a flat. If, as the appellant contended, it was the latter he could not be said to have sued for something done or omitted to be done under the Act.

Counsel for the appellant submitted that something done or omitted to be done by the respondent was not done or omitted to be done for or on its behalf. The words "for or on behalf of" are capable of a variety of meanings, depending on the context in which they are used. And in some cases, particularly in matters of agency, it is clear that something done for or on behalf of a person is not something done by him. But the expression "for or on behalf of" in s.35 was probably chosen in recognition of the nature of the respondent as a statutory body which could only act through its officers, employees and agents. This is a view of corporate responsibility which needs revision in the light of Tesco Supermarkets Ltd. v. Nattrass (1972) A.C. 153 (see the discussion in Trade Practices Commission v. Tubemakers of Australia Ltd. (1983) 47 ALR 719 at 737-740).

The appellant relied strongly on the judgment of Sugarman A.C.J. in Peisley v. Ashfield Municipal Council (1971) 23 L.G.R.A. 166 at p.169:

"In all this there was nothing 'omitted to be done under this Act'. A reference to things omitted to be done in a limitation section . . . is inserted only in order to bring within the ambit of the section a failure to perform a duty imposed by the Act which contains it".

Asprey J.A. approached the matter by reference to the person to whom the duty was owed:

"The case is not one in which a wrong was done to a private person by the omission on the part of an authority to perform some act which it either ought to do or may do in the course of discharging a duty owed to all the public alike or exercising an authority or power impartially for the benefit of the public . . . Accordingly I am of the opinion that the failure to prevent the creation of the private nuisance to the plaintiff by the removal of the tree was not something 'omitted to be done' under the 1919 Act" (pp.171-172).

As Mason J.A. concurred with Sugarman A.C.J's reasons for judgment, the ratio decidendi of the decision must lie in the notion of failure to perform a duty imposed by the statute as contrasted with failure to exercise a power

Earlier, in Heathwood v. Murgon Shire Council (1941) Q.S.R. 275 the Queensland Full Court had approached the construction of a statute comparable, in relevant respects, to the Act, by saying at p.279:

"However it seems clear that to secure the protection, the act must be done in the direct execution of the statute, and that it must be done in performance of a public duty and not of a mere private duty owed to some individual".

This approach, which is similar to that adopted by Asprey J.A. in Peisley, was derived from several English authorities including Bradford Corporation v. Myers (1916) 1 A.C. 242. However those authorities were concerned with legislation in different terms to the Act and, at least in some cases, a statute that spoke expressly of public duty.

In my view, the question whether something has been omitted to be done under the Act depends on whether there is a duty imposed on the respondent by the Act to do the thing in question. In that respect I adopt the approach taken by the majority in Peisley. The question is not one to be answered by reference to the cause of action as pleaded; it must be determined by reference to the facts pleaded which are said to constitute the cause of action.

To the extent that Knight v. Concord Municipal Council (1970) 3 N.S.W.L.R. 295 may be said to support the view that omission by a statutory body to exercise a power is something omitted to be done under an Act, I am of the respectful opinion that the decision should not be followed.

The respondent sought to meet the approach taken in Peisley by Sugarman A.C.J. and Mason J.A. by submitting that the power under the Act to repair, maintain, manage and control premises carried with it a duty to take reasonable care in the exercise of those powers. It followed, said the respondent, that any omission pleaded by the appellant was an omission to observe a duty under the Act. In my view the conferring of powers on the respondent by the Act did not carry with it any duty in the relevant sense. Bradford Corporation v. Myers supra at pp.248,260. In saying that, I do not overlook ss.26 and 31 of the Act which provide for a letting at an economic rent, the calculation of which includes an allowance for maintenance. But I am unable to find in those sections or elsewhere in the Act any duty imposed, expressly or by implication, on the respondent to exercise its powers to repair and maintain premises.

It is in the particulars pleaded in para. 8 of the statement of claim that the things said to have been omitted to be done are to be found. In my view these are not things omitted in the performance of some duty imposed by the Act. In consequence they are not matters for which notice under sub-s.35(1) of the Act was required; nor was the action one required to be commenced within the time limit specified by sub-s.35(4). In so far as some particulars may assert things done for or on behalf of the respondent, the position may be different. I do not find it necessary to resolve that question; it touches only two of the particulars. Whether the particulars remain in their present form and whether the evidence will support them of course remains to be seen. But this Court must deal with the appeal on the basis of the statement of claim as it stands.

The appeal should be allowed. The judgment striking out the statement of claim and directing that judgment be entered for the respondent should be set aside. The respondent should pay the costs of the application to the Supreme Court and the costs of this appeal.

JUDGE2

This is an appeal by COLIN PETER DAVIS (appellant) against a decision of the Chief Justice of the Supreme Court of the Northern Territory given on 28 October 1983 wherein he ordered that a Statement of Claim in which the appellant had sued the NORTHERN TERRITORY HOUSING COMMISSION (respondent) be struck out and a judgment be entered for the respondent.

The appellant claimed to have been the tenant of the respondent at Kurringal Flats and to have been injured on 4 October 1980 when he slipped on a wet slippery surface on a stairway at the flats suffering personal injury thereby.

The area wherein he slipped is part of the common area available to all tenants of the building. On 5 September 1983 the appellant issued a Writ against the respondent for personal injuries said to have been suffered in the accident. The specially endorsed Statement of Claim with the Writ alleged that there was implied in the tenancy agreement between the parties a covenant by the respondent to keep the common parts and facilities of the building of flats in good repair and in proper lighting; and further, the premises being premises within the meaning of the Tenancy Act 1979-1982, a covenant implied by s.55 of that Act imposing on the respondent as landlord an obligation to keep any common areas in a clean and safe condition. It was further alleged the respondent remained at all material times in occupation of the common areas of the building; that it was an express term of the tenancy agreement that the appellant had the right to use those areas and that the respondent as occupier of those areas, of which the stairway where the said personal injuries were received was part, was in breach of the duty of care it owed to the appellant as an invitee upon the land.

It was common ground between the parties that no notice of action as referred to in the Housing Act 1959-1979 (the Act) s.35 was served on the respondent stating the cause of action and other matters required by s.35(1) of the Act. Further, it is apparent that the action had not been commenced as required by s.35(4) of the Act within twelve months next succeeding the accruing of the alleged cause of action.

Section 12 of the Act headed "FUNCTIONS OF COMMISSION" reflecting the purpose of the Act as revealed in its preamble read -

"Subject to this Ordinance, the functions of the Commission are -

(a) to provide and to assist in the provision of residential accommodation; and

(b) to provide accommodation, residential, office, industrial or other, for the Commonwealth and the Territory public purposes."

It was common ground that the respondent caused the flats to be erected and let pursuant to these functions.

Section 12A headed "POWERS OF COMMISSION", so far as relevant, read -

"(1) The Commission has power to do all things necessary or convenient to be done for or in connexion with the performance of its functions and the exercise of its powers.

(2) Without limiting the generality of subsection (1), the Commission may, for the purpose of carrying out its functions and exercising its powers -

(a), (b), (c), (d) . . . .
(e) let premises;
(f) . . . .
(g) maintain, manage and control premises;
(h), (i), (j), (k), (m), (n) . . . ."

A consideration of the use of the word "maintain" in ss.12A, 12D and 31 as defined in the Housing Act 1982 s.5, suggests that it was concerned with e.g. repairing damage or rectifying a condition of disrepair on premises and not with keeping premises clean or safe or giving whatever attention is necessary to rectify a slippery surface. Schedule 4 Clause (1) of the Tenancy Act lends further support to this.

I have not found in the Act any requirements as to the form of tenancy agreements or covenants to be included in them; s.39A(3) (b), for example, although referring to terms and conditions did not specify their content.

Section 35, though now repealed, applied to this action. So far as relevant, it read -

"(1) An action shall not be brought against the Commission or a member or servant or agent of the Commission for anything done or intended or omitted to be done for or on behalf of the Commission under this Ordinance, until the expiration of one month after notice in writing has been served on the Commission or person to be sued, clearly stating the cause of action and the name and place of abode of the intended plaintiff and of his solicitor or agent.

(2) On the trial of such an action, the plaintiff shall not be permitted to go into evidence of any cause of action which was not stated in the notice so served.

(3) Unless such notice is proved, the Court shall find for the defendant.

(4) Such an action shall be commenced within the 12 months next succeeding the accruing of the cause of action, and not afterwards.

. . . . ."

The basis of the decision of the learned primary Judge was that the acts and omissions alleged against the respondent in the Statement of Claim were, in his view, "done or omitted to be done . . . under this Act". Accordingly he found that s.35 of the Act applied. The respondent has appealed claiming, inter alia, that the learned primary Judge was in error in finding that s.35 of the Act applied to acts done by the Housing Commission as well as acts done for or on behalf of it as contemplated in the terms of s.35.

He submitted further that the learned primary Judge had failed to have regard to the proper interpretation of certain authorities; to distinguish between the respondent's power to maintain and its duty to maintain premises in a safe condition being a common law duty as well as referred to in the Tenancy Act and not one referable to the Act.

His client, he said, sued for acts or omissions by the respondent as owner/occupier and not "for or on behalf of" it; that what was done was not done "under" the Act. He referred to Peisley v. Ashfield Municipal Council 23 L.G.R.A. 166; Varga v. Jongen (1970) 92 W.N. (N.S.W.) 1032; Board of Fire Commissioners (N.S.W.) v. Ardouin (1963-1964) 109 C.L.R. 105 at p.109; Bradford Corporation v. Myers (1916) A.C. 242.

Counsel for the respondent submitted that the respondent was a landlord only because of its position under the Act; that if the Tenancy Act Schedule 4 Clause (1) including sub-para. (e) applied to a letting under the Act, the power to be exercised was referable to the Act; it would follow that any failure to carry out a cleaning operation would be a breach of the duty found in, or imposed pursuant to, the Act and thus subject to the limitations in s.35. This letting, he said, was part of the respondent's duty to let referable to the Act; maintaining was not merely incidental to but part of the respondent's duty under that Act and so similarly controlled by s.35.

Arguments advanced for the parties need not be fully set out here.

We have not been asked to consider the jurisdiction of the learned primary Judge to order that judgment be entered at an interlocutory stage in the action; nor have principles such as those discussed in General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964-1965) 112 C.L.R. 125 been invoked by the appellant. The tenancy agreement was not before the learned primary Judge or this Court.

There are well established principles of the common law relating to landlord occupier's liability to tenants who are entitled to use those areas of a flat dwelling not included in a letting of any one flat. Such principles refer to the duty of care owed by occupiers to categories of persons on premises. The lodger in a tenant's flat, at least one who has the permission of the landlord to use the common stairway, has been held to be the licensee of the landlord. See Fairman v. Perpetual Investment Building Society (1923) A.C. 74 per Lord Atkinson at p.85, Lord Sumner at p.92, Lord Wrenbury at p.95. The tenant has, in respect of common areas, been held to attract a higher duty from the landlord viz. that owed to an invitee: Dunster v. Hollis (1918) 2 K.B. 795. It may be that these standards of care which are not always expressed in the same terms have blurred as time has passed. We are not concerned to try to define any quantum of duty which could only be done by the primary Judge in the light of the facts he found. It is conceded for the purpose of this hearing that s.55 and thus Schedule 4 Clause (1) (e) of the Tenancy Act applied to this letting. They read -

"55 IMPLIED TERMS

Other than a lease, or proposed form of lease, approved under section 55A, every lease of premises, written or otherwise, shall be read as including as terms of that lease the terms set out in Schedule 4."

"SCHEDULE 4 Section 55

IMPLIED COVENANTS AND CONDITIONS

1. On the part of the lessor -

. . . .

(e) in the case of shared accommodation or where the premises include more than one caravan or demountable building, to keep any common area in a clean and safe condition; and . . . . "

The "premises" referred to there are not readily to be equated with a multiple flat building with common areas.

Reference may be made to some of the authorities cited in argument. They have a restricted value since they refer to limitation sections in terms different from those of s.35.

Nevertheless in Varga v. Jongen (supra) limitation sections were considered which were not significantly dissimilar to s.35. The facts included that a motor omnibus owned and operated by the Commissioner for Government Transport was involved in a collision. An action was brought against the driver, an employee of the Commissioner. It was held that in driving the omnibus the defendant was doing something which the law gave him a right to do; what he did was not "done under" the relevant Act (p.1039); or in the exercise or performance of any power, authority, duty or function conferred or imposed (by that Act). In Board of Fire Commissioner (N.S.W.) v. Ardouin (supra) the respondent brought an action for personal injuries received by him when a motor cycle which he was riding came into collision with a motor vehicle belonging to the fire brigade. The limitation section was dissimilar. However, the words of Dixon C.J. at p.109 are of assistance. He said -

"When s.46 speaks of the bona fide exercise of the Board's powers it appears to me to be referring primarily to the exercise of powers which of their nature will involve interferences with persons or property."

Later, he said, the section did not refer to "performing the functions of the Board, which are of an ordinary character". Kitto J. at p.116 said that in enacting s.46, the legislature was -

". . . . not intending that such an immunity, granted in the general interest but at the cost of individuals, should be carried further than a jealous interpretation will allow."

In Peisley v. Ashfield Municipal Council (supra) a houseowner sued the Council to recover the cost of rectification of certain drainage damaged by roots of trees which entered the land. The trees had been planted by the Council. Section 580 of the Local Government Act 1919-1970, a limitation section, provided that a writ could not be sued out or served upon the Council for -

"anything done or intended to be done. . . under this Act. . . ."

It was held that planting trees was not a thing "done" under this Act. Sugerman A.C.J. (as he then was) (p.169) decided there was nothing "omitted to be done under this Act". "If there was a wrong. . . .by a failure to remove poplars. . . .this was a wrong at common law and not by way of omission to perform any duty imposed by the Act."

Mason J.A. agreed with the reasons of Sugerman A.C.J. Asprey J.A. concurred in the result but his reasons were somewhat different. What I conceive to be the essence of the decision is to be found in the above words of Sugerman A.C.J. They provide a firm guide for us in this matter.

We were pressed with arguments related to the words of various sections and their treatment in many cases. I have not found a consideration of the English authorities referring to the Public Authorities Protection Act of great assistance; its relevant terms are hardly comparable with those of s.35. I do not find the use of the words "for or on behalf of" in s.35 of great moment. They may do no more than recognise that a statutory body must have servants for it to carry out any action. It is not necessary to reach any conclusion on this, particularly as no detailed argument was offered on the point.

It is common ground that in erecting and letting the flat premises the respondent was performing its functions and exercising its powers under the Act. There are then no provisions in the Act which refer directly to "ordinary" landlord and tenant duties and obligations. In failing to observe what are said to be implied terms in the letting the respondent was not, I consider, omitting anything to be done under the Act. Further, assuming the truth of the assertions in the Statement of Claim, the respondent was an occupier of the premises and may have owed to the appellant a duty of care referable to his status. Such a duty if there was one was not, in terms, imposed by the Act, but by the common law. Any breach of duty such as was alleged was not an omission to do anything "under this Act", which had not addressed itself to such duties, statutorily or common law imposed.

Section 35(4) of the Act implied a limitation of time for the commencement of an action of the kind referred to by s.35(1); so what is decided in relation to s.35(1) will apply also to s.35(4).

It is unnecessary to try to resolve all the matters referred to in argument. Indeed we are in no position to do so.

In my opinion a notice such as is referred to in s.35(1) was not required of the appellant in the circumstances alleged or conceded.

I would uphold this appeal.

JUDGE3

This is an appeal from a judgment of the Supreme Court of the Northern Territory delivered on 28 October 1983. The primary judge held that the action of the appellant (the plaintiff in the Supreme Court) could not succeed by reason of s.35 of the Housing Act 1959-1979 and ordered that the Statement of Claim be struck out and that judgment be entered for the respondent (defendant) with costs. The appellant accepts that, for present purposes, it is immaterial, that s. 35 of the Housing Act has been repealed and that the Limitation Act 1981 has become law.

The respondent is and at all material times was the owner of "Kurringal Flats". The respondent was incorporated under the Housing Act and has functions and powers under that Act. By s.12 its functions include the provision of residential accommodation and by s. 12A it has power to do all things necessary or convenient to be done in connection with the performance of its functions and the exercise of its powers, including powers to build, let, repair, alter, extend, renovate, maintain, manage and control premises. Section 26 of the Housing Act also deals with the respondent's power to let premises.

The appellant was a tenant at Kurringal Flats on 4 October 1980. He claims that on that day he slipped on a wet and slippery step on a stairway at the flats adjacent to the tenants' carpark and was injured. On 5 September 1983, the appellant issued a writ claiming damages. According to the Statement of Claim endorsed on the writ, the appellant's injuries were caused by the respondent:

(1) Failing to clean properly and sufficiently regularly the said common stepway of the said building of flats.

(2) Causing or permitting the said common steps to be unsafe in that puddles of water accumulated in such steps.

(3) Causing or permitting the said steps to become smooth, shiny and slippery and chipped on the edges.

(4) Failing to ensure that water from the laundry located above the said steps did not run down the said steps to form puddles.

(5) Failing to provide adequate or any handrails for support for persons using the said steps.

(6) Failing to provide adequate or any lighting over the said steps.

It is pleaded that the respondent thereby breached an implied term of the tenancy agreement between the parties obliging the respondent to keep the common areas and facilities of the flats in good repair and proper lighting, and/or a covenant implied into the tenancy agreement by s.55 of the Tenancy Act 1979-1982 obliging the respondent to keep the common areas and facilities of the flats in a clean and safe condition, and/or that the respondent was negligent in that it breached a duty of care which as occupier of the common areas and facilities of the flats it owed to the appellant as an invitee in respect of those areas and facilities by virtue of his tenancy of his flat. The respondent has accepted for present purposes that the Tenancy Act applies to its tenancy agreement with the appellant (see Tenancy Act, s.5), and it did not argue that the terms contended for by the appellant would not otherwise be implied into the tenancy agreement or that the respondent did not in any event owe a common law duty of care as occupier of the common areas and facilities to the appellant as tenant of one of the flats.

Section 35 of the Housing Act provided at the material times as follows:

"35. NOTICE OF ACTION.

(1) An action shall not be brought against the Commission or a member or servant or agent of the Commission for anything done or intended or omitted to be done for or on behalf of the Commission under this Act, until the expiration of one month after notice in writing has been served on the Commission or person to be sued, clearly stating the cause of action and the name and place of abode of the intended plaintiff and of his solicitor or agent.

(2) On the trial of such an action, the plaintiff shall not be permitted to go into evidence of any cause of action which was not stated in the notice so served.

(3) Unless such notice is proved, the Court shall find for the defendant.

(4) Such an action shall be commenced within the 12 months next succeeding the accruing of the cause of action, and not afterwards.

(5) A person to whom such notice of action is given may tender amends to the plaintiff or his solicitor or agent at any time within one month after service of the notice and, if the tender of amends is not accepted, may plead the tender."

There is no suggestion that, if s.35 would otherwise apply, there are any circumstances which might be able to be raised by the appellant which would take this case out of the operation of the section.

A body such as the respondent owes its very existence to a particular statute which usually grants functions and powers to the body and imposes duties upon it, although other powers and duties may be granted to or imposed upon such a body by other statutes, either specifically or in general terms, or by the general law. Every act or omission of such a body may be said to occur "under" its special statute in the sense that that statute is the ultimate source of the body's existence and capacities. However, that is not the meaning attributed to "under" in a provision like s.35: see Board of Fire Commissioners of New South Wales v. Ardouin (1961) 109 C.L.R. 105.

The Housing Act is a direct and immediate source of the respondent's powers in relation to the common areas and facilities of its flats, including its powers to enter into and perform the terms of tenancy agreements which impose obligations upon it in relation to such areas and facilities. The respondent argued that, by its grant of powers to the respondent, the Housing Act implicitly imposed duties upon the respondent in like terms; that is to say, to build, let, repair, alter, extend, renovate, manage, maintain and control premises etc. In my opinion, that contention cannot be sustained. There is no basis upon which it could be concluded that the grant by the Housing Act of powers to the respondent in permissive terms makes it compulsory for the respondent to exercise those powers: see, for example, Varga v. Jongen (1970) 92 W.N. (N.S.W.) 1032; Lamb v. Moss (1983) 49 A.L.R. 533, 549.

The causes of action sought to be relied by the appellant do not expressly assert either non-performance by the respondent of duties imposed upon the respondent by the Housing Act in relation to the common areas and facilities of the flats or improper performance by the respondent of powers or duties under the Housing Act in relation to such areas and facilities. The appellant's case is that, irrespective of the respondent's powers and duties under the Housing Act, the respondent has obligations under the tenancy agreement and under the common law. The appellant's claim is for breach of these obligations which are said to arise independently of the Housing Act. Nonetheless, it does not follow that the appeal must succeed. Section 35 is not concerned to limit or exclude causes of action under the Housing Act or for breaches of the Housing Act as such. It operates upon particular acts or omissions asserted as the bases of causes of action, whether the causes of action are said to be breach of statute, or of contract, or of the general law. It is necessary to identify with precision what acts or omissions are asserted against the respondent and to see whether each act or omission was "done or intended or omitted to be done for or on behalf of" the respondent under the Housing Act.

Some at least of the allegations made against the respondent by the appellant in the Statement of Claim in the present case relate to allegedly wrongful omissions. In Peisley v. Ashfield Municipal Council (1971) 23 L.G.R.A. 166, Sugarman A.C.J. said at p.169 that a reference to things omitted to be done in a provision such as s.35 is inserted only to bring within the ambit of the section a failure to perform a duty imposed by the Act which contains it, and reference was made to Benson v. Commissioner for Road Transport and Tramways (1935) 35 S.R. (N.S.W.) 348. Mason J.A., as his Honour then was, agreed. See also Varga v. Jongen, supra. Non-performance of what is empowered but not required by a statute is not in the material sense omitted to be done under the statute.

To the extent that it is the appellant's case that the respondent entirely omitted to perform acts which it was empowered but not required to perform by the Housing Act but was obliged to perform only by the tenancy agreement and/or its duty of care to the appellant under the general law, s. 35 has no operation; such acts were not omitted to be done under the Housing Act.

Insofar as it may be part of the appellant's case that the respondent engaged in activities which, by reason of the wrongful manner of their execution, constituted breaches of the tenancy agreement between the parties and/or the respondent's duty of care to the appellant under the general law, the position seems to me less clear. Although the wrongful performance by the respondent of its powers under the Housing Act is not the cause of action upon which the appellant sues, the Housing Act was a direct and immediate source of the respondent's power to engage in such activities (although not the wrongful mode of performance). However, whether or not s.35 applies might depend upon the answer to further questions. It might be necessary to decide whether the acts which were of a character which do not require special statutory authorization were performed under the Housing Act in the material sense (Ardouin, supra, Hudson v. Venderheld (1968) 118 C.L.R. 171; Varga, supra), whether the activities were engaged in "for or on behalf of" the respondent, and perhaps whether they were engaged in for the public benefit and whether or not the powers pursuant to which they were engaged in were subsidiary powers: Firestone Tire and Rubber Co.(S.S.) Ld v. Singapore Harbour Board (1952) A.C. 452. I should add that my tentative view is that no assistance is to be obtained from the latter case and the English authorities dealing with similar provisions to that there discussed, all of which seem to turn very much on the considerably different language of those provisions.

In view of the conclusion at which I have arrived that the omissions alleged against the respondent are outside the ambit of s.35, the appeal must succeed and the judgment for the defendant be set aside. It seems to me quite inappropriate in those circumstances to enter upon the further questions to which I have referred at this stage of the proceedings. Such issues are obviously better addressed at the trial when the appellant's claim has been finally formulated and the evidence has been investigated. It is sufficient for the moment to observe that s.35 of the Housing Act does not constitute a complete defence to every cause of action which has been asserted by the appellant in relation to the injury which he allegedly suffered on 4 October 1980.

I would allow the appeal, set aside the judgment for the respondent and the order striking out the Statement of Claim, and dismiss the respondent's summons. The respondent must pay the taxed costs here and below.