House v ACT (No 2)

[2025] ACTSC 207

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

House v ACT (No 2)

Citation: 

[2025] ACTSC 207

Hearing Date: 

On the papers

Decision Date: 

20 May 2025

Before:

Mossop J

Decision: 

See [14]

Catchwords: 

HUMAN RIGHTS – EXTENSION OF TIME – Previous dismissal of application for extension of time because of inadequate pleadings – where pleadings amended to address inadequacies – where first defendant now does not oppose an extension of time – extension of time in general terms granted in the circumstances

Legislation Cited: 

Human Rights Act 2004 (ACT), ss 8(2), 27(2), 40B, 40C

Cases Cited: 

House v ACT [2025] ACTSC 122

Parties: 

Paul Girrawah House (First Plaintiff)

Leah Matilda House (Second Plaintiff)

Australian Capital Territory (First Defendant)

Minister for Heritage (Second Defendant)

Representation: 

Solicitors

Griffin Legal (First and Second Plaintiff)

ACT Government Solicitor (First Defendant)

File Number:

SC 381 of 2024

MOSSOP J:  

Introduction

1․Before me is an application in proceeding dated 28 April 2025 filed by the plaintiffs, Leah Matilda House and Paul Girrawah House. The application seeks that, pursuant to ss 40C(2)(a) and 40C(3) of the Human Rights Act 2004 (ACT) (HR Act), the plaintiffs be granted an extension of the time for commencing proceedings against the first defendant, the Australian Capital Territory, to 29 November 2024.

2․This application is made by the plaintiffs in the context of a prior application dated 28 January 2025 for leave under ss 40C(2)(a) and 40C(3) of the HR Act. That application sought a similar extension of time. On 28 March 2025, I indicated that I would dismiss that application, because I considered that the pleadings did not adequately allege how breaches of ss 8(2) and 27(2) of the HR Act by the defendants had occurred. I did not consider it appropriate in those circumstances to grant an extension of time: see House v ACT [2025] ACTSC 122.

3․The orders that I made on 28 March 2025 were as follows:

1․ The plaintiffs are granted leave and directed to file and serve an amended originating claim and statement of claim and any further application in proceeding seeking an extension of time under s 40C(3) of the Human Rights Act 2004 (ACT) by 17 April 2025.

2․    The proceedings are listed for directions before the Registrar on 28 April 2025 at 2:30pm.

3․    Parties are directed to confer and attempt to agree upon directions to be made on 28 April 2025 and have leave to provide any proposed directions to the Registrar in advance of that hearing.

4․    The costs of the application in proceeding dated 28 January 2025 and the costs thrown away by the amendment of the claim and pleadings are reserved.

Note: The Registrar may refer the proceedings to Mossop J on 28 April 2025.

4․As will be apparent from the terms of the above orders, I failed to give effect to the intention which I expressed at [26] of my reasons to dismiss the application. I will amend those orders pursuant to the inherent power of the court to ensure that its orders reflect the orders that were intended to be made, so as to make the order that I intended to make.

5․Pursuant to the leave which I gave on 28 March, the plaintiffs have now filed an amended originating claim and statement of claim dated 17 April 2025.

6․As also required by those orders, the matter was listed before the Registrar on 28 April 2025. At that hearing, the Registrar made orders providing for the provision of written submissions by both parties, and with the consent of the parties, referred the application in proceeding dated 28 April 2025 to me to be determined on the papers.

Application in proceeding dated 28 April 2025

7․The plaintiffs now seek an extension of time under s 40C for the commencement of proceedings. They refer specifically to the same paragraph of their pleadings as they had in their earlier application — paragraph 20 — but seek an order in general terms permitting an extension of time up until the date the proceedings were commenced.

8․The pleading has been substantially amended so as to overcome the difficulties that were identified in my earlier reasons.

9․The first defendant does not now oppose the grant of an extension of time, but says that an order under s 40C(3) is also required in relation to additional paragraphs of the amended statement of claim, those being [19A] through to [20E], and [23]. The first defendant does not consider that an extension of time is required in respect of [21] and [22] of the amended statement of claim. It also submits that aspects of the claim made by the plaintiff relating to failure to comply with the settlement deed occurred outside the one-year period and, hence, also requires an extension of time. It says that leave is required for [19A] through to [20E] and [23] because [24] of the Amended Statement of Claim states that “[t]he matters alleged in paragraphs 19A – 23, both individually and in combination” (emphasis added) amounted to a denial of the plaintiffs’ cultural rights in s 27(2) of the HR Act, and a denial of the plaintiffs’ right to enjoy their human rights without discrimination and equally with the Ngunnawal people in s 8(2) of the HR Act. The consequence of [24] being pleaded in that way is that each of the complaints in [19A] through to [20E] and [23] constitute “individual” claims that a public authority has acted in contravention of s 40B of the HR Act. Because the proceedings were commenced more than one year after some of the individual acts relied upon in those paragraphs, an extension of time is therefore required for each of those paragraphs. The first defendant does not oppose the grant of an extension of time in relation to these additional paragraphs.

10․In submissions in reply, the plaintiffs accepted that an extension of time was required in relation to the broader range of paragraphs.

11․Now that the pleadings have been appropriately drafted, notwithstanding that there was a less-than-perfect explanation for at least part of the delay in the commencement of proceedings, I consider that a substantial portion of the delay is explained, there is no identified prejudice to the first defendant, the plaintiffs have an arguable substantive claim, and the interests of justice make an extension of time appropriate. In my view, while recognising that a wider range of paragraphs than those specifically referred to by the plaintiffs are matters which require an extension of time, I consider that it is appropriate — having regard to the lack of opposition to the grant of an extension — to simply grant an extension in general terms as sought by the plaintiffs.

Conclusion

12․An order will be made extending time so as to permit the case as a whole to proceed in accordance with the current timetable. As that timetable is in place and would result in the matter being prepared up to the point of a listing hearing, it is not necessary to make any further directions.

Costs

13․In the first defendant’s written submissions, it submits that the appropriate order for costs of the earlier application and the current application, including costs thrown away by the amendment of the proceedings, should be costs in the cause. The plaintiffs made no submissions in relation to costs. However, the costs order proposed by the first defendant is one which, in the circumstances, is very favourable to the plaintiffs having regard to the indulgences that they were seeking both in relation to an extension of time and the amendment of the pleadings. I will therefore make an order to the effect of that proposed in relation to both the costs reserved on 28 March 2025 as well as costs of the current application.

Orders

14․The orders of the Court are:

(1)Amend the orders made on 28 March 2025 so that they include the additional order: “The application in proceeding filed 28 January 2025 is dismissed.”

(2)Admit into evidence each of the documents contained in the bundle entitled “Index of Supporting Material to the Application in Proceeding dated 28 April 2025”.

(3)Grant an extension of time pursuant to s 40C(3) of the Human Rights Act 2004 (ACT) to the plaintiffs for commencing proceedings against the first defendant to 29 November 2024.

(4)Order that the costs of the applications in proceeding dated 28 January 2025 and 28 April 2025 and the costs thrown away by reason of the amendment of the originating claim and the statement of claim are costs in the cause.

I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 20 May 2025