Munupi Wilderness Lodge Pty Ltd v Executive Director of Township Leasing
[2022] FCA 216
•11 March 2022
FEDERAL COURT OF AUSTRALIA
Munupi Wilderness Lodge Pty Ltd v Executive Director of Township Leasing [2022] FCA 216
File number: NTD 4 of 2021 Judgment of: CHARLESWORTH J Date of judgment: 11 March 2022 Catchwords: ADMINISTRATIVE LAW – competency of an application for an extension of time to bring an application for review of a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) – applicant and respondent in relationship of lessee and lessor – lessee occupying land pursuant to a holding over clause – lessor issuing notice to vacate for the purposes of the holding over clause and for the purposes of laws affecting business tenancies in the Northern Territory – lessor deriving capacity and authority to enter into and administer leases under an enactment – decision complained of deriving its legal force from the general law of contract and equity – decision not made under an enactment within the meaning of the Administrative Decisions (Judicial Review) Act 1977 (Cth) Legislation: Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ss 3AAA, 3AB, 4, 5, 19, 19A, 20, 20B, 20C
Aboriginal Land Rights (Northern Territory) Amendment (Township Leasing) Act 2007 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 5, 6, 11
Australian Telecommunications Corporation Act 1989 (Cth) s 19
Aboriginal Land Rights (Northern Territory) Regulations 2007 (Cth) reg 5AA
Business Tenancies (Fair Dealings) Act 2003 (NT) ss 11B, 131
Griffith University Act 1998 (Qld)
Homes Act 1935 (Tas) ss 6A, 16
Judicial Review Act 1991 (Qld)
Judicial Review Act 2000 (Tas)
Residential Tenancy Act 1997 (Tas)
Cases cited: Australian National University v Lewins (1996) 68 FCR 87
General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164
Griffith University v Tang (2005) 221 CLR 99
King v Director of Housing (2013) 23 Tas R 353
Tiwi Aboriginal Land Trust v Munupi Wilderness Lodge Pty Ltd [2014] NTSC 5
Division: General Division Registry: Northern Territory National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 54 Date of hearing: 1 July 2021 Counsel for the Applicant: Mr R Clutterbuck Solicitor for the Applicant: Turnbull Mylne Counsel for the Respondent: Mr T Liveris Solicitor for the Respondent: Australian Government Solicitor ORDERS
NTD 4 of 2021 BETWEEN: MUNUPI WILDERNESS LODGE PTY LTD ACN 106 081 064
Applicant
AND: THE EXECUTIVE DIRECTOR OF TOWNSHIP LEASING
Respondent
ORDER MADE BY:
CHARLESWORTH J
DATE OF ORDER:
11 MARCH 2022
THE COURT ORDERS THAT:
1.The application for an extension of time to seek an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J
The applicant, Munupi Wilderness Lodge Pty Ltd, operates a fishing lodge as a tourism business from land situated on Melville Island in the Northern Territory (described as Lot 322(A) on Survey Plan S2012/289A, Pirlangimpi) (the Land).
From 2005, Munupi occupied the Land pursuant to a lease granted by the Tiwi Aboriginal Land Trust (TALT) (the Original Lease), and then, from 1 July 2010 pursuant to rights and interests arising in equity (the Equitable Lease). The Equitable Lease came about in circumstances discussed by Hiley J of the Supreme Court of the Northern Territory in Tiwi Aboriginal Land Trust v Munupi Wilderness Lodge Pty Ltd [2014] NTSC 5. For present purposes it is sufficient to note that it commenced on 1 July 2010 and operated on the same terms as the Original Lease, including provision for a five year term with an option to renew.
The term of the Equitable Lease expired on 1 July 2015, the option to renew not having been exercised. It is common ground that from that time, Munupi occupied the Land on a quarterly periodic basis, subject to terms equivalent to clause 19 of the Original Lease (the holding over clause).
The respondent is the Executive Director of Township Leasing, established under s 20B of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Land Rights Act). In circumstances described below, on 26 June 2017, TALT granted the Executive Director a lease (described as a “head lease”) over the township of Pirlangimpi (the Township Lease). On 5 January 2021, the Executive Director served or purported to serve upon Munupi a written notice to vacate the premises in accordance with (or purportedly in accordance with) the holding over clause (the Notice to Vacate). The Notice to Vacate was described as a “notice to quit”, the service of which has certain consequences recognised under the Business Tenancies (Fair Dealings) Act 2003 (NT) (Tenancies Act). In short, the service of a notice to quit preconditions the power of the Local Court in the Northern Territory to issue a possession warrant in respect of the Land in accordance with the Tenancies Act, and so aids and qualifies the enforcement of a landlord’s rights.
It is common ground that the Executive Director may exercise rights under the Equitable Lease by virtue of certain provisions of the Land Rights Act and that it meets the description of a landlord for the purposes of the Tenancies Act.
In this Court, Munupi seeks an extension of time in which to commence an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) for review of the Executive Director’s decision to issue the Notice to Vacate. Munupi contends that the decision is one to which the ADJR Act applies, specifically that is a decision of an administrative character made under the Land Rights Act. If granted an extension of time, Munupi will apply for review of the decision on these three grounds:
1.The Respondent failed to afford the Applicant natural justice and/or procedural fairness in making the Decision it did.
2.The Respondent failed to consider relevant mandatory negotiations that were procedurally required, mandated before giving Notice to Quit, during an emergency period as identified in the Northern Territory of Australia, Government Gazette, 28 April 2020.
3.The making of the Decision was a substantive determination of the rights and interests of the Applicant, contrary to the functions of the Respondent as mandated in section 20C of the Land Rights Act.
By an objection to competency, the Executive Director contends that the decision complained of is not one to which the ADJR Act applies. With the concurrence of the parties, the objection to competency is now determined before any other issue.
For the reasons that follow, the Executive Director’s objection should be upheld. The application for an extension of time will be dismissed on the ground that it is incompetent.
THE ADJR ACT
Section 5 of the ADJR Act provides that a person who is aggrieved by a decision to which it applies may apply to this Court for an order of review in respect of the decision on specified grounds. An application may be made under s 6 of the ADJR Act for an order of review of conduct engaged in or proposed to be engaged in for the purpose of making a decision to which it applies. An application for an order of review must be made within 28 days of the decision: ADJR Act, s 11(3). The present application was filed out of time, such that it is necessary for Munupi to be granted leave nunc pro tunc to institute the proceeding. The parties agree that the application for an extension of time cannot and should not be granted in respect of an originating application that is otherwise incompetent.
The expression “decision to which this Act applies” is defined in s 3 as follows:
decision to which this Act applies means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition):
(a)under an enactment referred to in paragraph (a), (b), (c), (d) or (e) of the definition of enactment; or
(b)by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca), (cb) or (f) of the definition of enactment;
other than:
(c)a decision by the Governor-General; or
(d)a decision included in any of the classes of decisions set out in Schedule 1.
Principles
In General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164, the Full Court concluded that a decision of the respondent (referred to as Telecom) was not a decision of an administrative character made under an enactment within the meaning of the ADJR Act. Section 19 of the Australian Telecommunications Corporation Act 1989 (Cth) conferred upon Telecom “all of the powers of a natural person” including a power to contract. The appellants operated a printing business and had a long standing commercial relationship with Telecom for the production of telephone directories. It sought a review of a decision by Telecom to contract with a rival company without first putting the work out for tender and affording it the opportunity to quote for the work, together with conduct preparatory to making the decision. Davies and Einfeld JJ said (at 169):
In our opinion, there was no conduct or decision on the part of Telecom which was amenable to an order under the ADJR Act. The ADJR Act provides the structure for judicial review, which is review, not of acts taken under the general law applicable in the community, but of acts which have statutory effect because of the provisions of a federal enactment. Thus, a ‘decision’ taken under a federal enactment is an action or a refusal to act which, by virtue of the statute, affects legal rights and/or obligations. A step which has no such effect is not a reviewable decision for the purposes of s 5 of the ADJR Act. And conduct is not reviewable under s 6 of the ADJR Act unless it is ‘conduct for the purpose of making a decision to which this Act applies.’ The ambit of the jurisdiction is limited to decisions as defined and to conduct leading to the making of such decisions.
(emphasis added)
Their Honours continued (at 173):
No statute made specific provision for such contracts, merely conferring upon Telecom all the powers of a natural person including the power to enter into a contract. That was a mere conferral of capacity to act. The contracts were not relevantly authorised or required by and were not made under an enactment. The validity of the contracts and of the acts done was governed entirely by the law of contract, not by the statutes. Thus, the ADJR Act had no application to the conduct or to the alleged decisions.
At the time that General Newspapers was decided there was tension in the authorities (particularly the authorities of this Court) as to the proper approach. Twelve years later, the requirement that a decision derive its legal force from the relevant enactment found expression in the second limb of a test stated the High Court in Griffith University v Tang (2005) 221 CLR 99. After citing General Newspapers without disapproval, the majority (Gummow, Callinan and Heydon JJ) said (at [89]):
The determination of whether a decision is ‘made ... under an enactment’ involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be ‘made ... under an enactment’ if both these criteria are met. …
Their Honours elaborated on the second limb as follows:
It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.
(original emphasis)
The second limb must also be understood in the context of the reasons of the majority as a whole, including what is said (at [82]):
… a statutory grant of a bare capacity to contract does not suffice to endow subsequent contracts with the character of having been made under that enactment. A legislative grant of capacity to contract to a statutory body will not, without more, be sufficient to empower that body unilaterally to affect the rights or liabilities of any other party. The power to affect the other party’s rights and obligations will be derived not from the enactment but from such agreement as has been made between the parties. A decision to enter into a contract would have no legal effect without the consent of the other party; the agreement between the parties is the origin of the rights and liabilities as between the parties.
Earlier, the majority adopted and adapted what was said by Kiefel J (as her Honour then was) and Lehane J in Australian National University v Lewins (1996) 68 FCR 87 (at 96 – 97, 101 – 103). The majority emphasised that it was not sufficient that as a matter of construction the enactment (whether expressly or by necessary implication) required or authorised the decision (at [78]). Their Honours said:
78There is a line of authority in the Federal Court, beginning with the judgment of Lockhart and Morling JJ in Chittick v Ackland and including the judgments of Kiefel J and Lehane J in Australian National University v Lewins, which assists in fixing the proper construction of the phrase ‘decision of an administrative character made … under an enactment’. As noted earlier in these reasons, the presence in the definition in the AD(JR) Act of the words ‘(whether in the exercise of a discretion or not …)’ indicates that the decision be either required or authorised by the enactment. Mayer shows that this requirement or authority may appear sufficiently as a matter of necessary implication. However, whilst this requirement or authority is a necessary condition for the operation of the definition, it is not, by itself, sufficient.
79The decision so required or authorised must be ‘of an administrative character’. This element of the definition casts some light on the force to be given by the phrase ‘under an enactment’. What is it, in the course of administration, that flows from or arises out of the decision taken so as to give that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved?
80The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement? To adapt what was said by Lehane J in Lewins, does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute?
(footnotes omitted)
In Tang itself, the Griffith University excluded a student from continuing in a postgraduate program after a disciplinary process resulted in a finding that she had engaged in academic misconduct. The Judicial Review Act 1991 (Qld) applied to a “decision of an administrative character made … under an enactment”, a form of words borrowed from the ADJR Act: Tang at [3].
The University was created by the Griffith University Act 1998 (Qld), the provisions of which declared a Council of the University to be its governing body and conferred on the Council the power “to manage and control the university’s affairs and property”. The decision to exclude the student was made by a subcommittee and later upheld by an appeals committee, both established by the Council. The decision was not made pursuant to rules the university was empowered by the statute to make. The student sought review of the decision on the basis that it was made under the statute.
The majority held that the decisions complained of were “authorised, albeit not required” by the Griffith University Act, the committees involved depending for their existence on that enactment and the powers of the committee having been delegated to them under the enactment. However, the decisions did not affect the student’s legal rights or obligations. The student had not framed her case in terms of any legal right (whether arising under the private law or conferred by any statute) having been affected. Accordingly, the decisions (at [96]):
… had no impact upon matters to which the University Act gave legal force and effect. The respondent enjoyed no relevant legal rights and the University had no obligations under the University Act with respect to the course of action the latter adopted towards the former.
The principles discussed in Tang were applied by the Full Court of the Supreme Court of Tasmania in King v Director of Housing (2013) 23 Tas R 353. Like the ADJR Act, the Judicial Review Act 2000 (Tas) (JRA Act) applied to a decision made under an enactment. Section 6A of the Homes Act 1935 (Tas) constituted the Director of Housing as a corporation sole for the purpose of acquiring, holding, disposing of and otherwise dealing with land. Accordingly, the office of the Director owed its existence and its capacity to contract to the statute. Section 6A(3A)(d) provided that the Director may do all such acts and things as may be required or necessary or appropriate for exercising the powers given to it under that or any other enactment. Section 16 conferred upon the Director a discretionary power to let any residential home on such terms and conditions as the Director saw fit. When acting as a lessor, the Director was subject to the provisions of the Residential Tenancy Act 1997 (Tas) which made provision for the expiry, extension and renewal of certain residential tenancy agreements.
A fixed term lease existed between a tenant and the Director in respect of residential premises. The Director issued a notice under the lease to the tenant to the effect that the lease was due to expire, would not be renewed or extended and that the tenant would be required to vacate the premises on the expiry.
At first instance Blow J concluded that the Director’s authority to enter into a new lease was conferred under the Homes Act, such that the first criterion discussed in Tang was fulfilled. Blow J continued (at [21]):
… neither of the impugned decisions satisfied the second criterion. The decision not to extend or renew the applicant’s lease was in substance a decision not to take a single step in a decision-making process. The lease could only have been renewed or extended by means of an agreement entered into by both parties. Such an agreement would have conferred new rights on the applicant, but they would have been rights under the general law, not rights under the Homes Act. The decision not to extend or renew the lease … was a decision not to make an offer which, if accepted, would have conferred new rights, and any such new rights would have been rights under the general law. The decision to serve the applicant with a notice to vacate was an effective unilateral decision, but it too was a decision under the general law – a decision that any landlord could make, rather than a decision deriving from the Homes Act.
On appeal, Porter J (Tennant and Wood JJ agreeing) referred to the distinction between the legislative source of the authority to make the decision and the foundation for the force of the decision (at [65]). His Honour said (at [64]):
… Whilst the authority for the Director to act in the way he did comes from the HA, the force or effect of the decisions does not. The decisions derived their force from the contractual relationship between the parties, as that relationship is governed by the RTA. The lease agreement provided for an expiry date. A decision not to extend or renew the lease beyond that expiry date has force because of the ordinary relationship between parties in that position. The service of the notice to vacate is to be treated in the same way. The decision derives its force from the relationship as governed by the RTA. As the primary judge said, the decision to serve the notice to vacate was a decision that any landlord could make, rather than a decision deriving from the HA. That the RTA governed the circumstances in which the Director had to deal with the expiry of the lease, and the issue of a notice to vacate, is irrelevant. The decisions operate because of the general law.
APPLICATION OF THE TEST IN TANG
It is not disputed that, for the purposes of the ADJR Act:
(1)the Land Rights Act falls within the definition of an “enactment”;
(2)the Tenancies Act does not fall within the definition of an “enactment”; and
(3)the impugned decision is not included in any of the excluded classes of decisions set out in Sch 1.
From that starting point, it is necessary to scrutinise the enactment under which the decision is said to have been made for three purposes. First, it is necessary to identify whether the decision complained of was required or authorised (whether expressly or impliedly) by the enactment. Second, in the circumstances of the present case the enactment sheds some light on the source and nature of the legal rights said to have been affected by the challenged decision. Third, it is necessary to identify whether the challenged decision affects those legal rights and, if so, whether the decision derives its legal force or effect from the enactment in the sense discussed by the High Court in Tang.
As explained below, I have concluded that the first criterion discussed in Tang is fulfilled, but the second is not.
TALT is a Land Trust established in accordance with s 4(1) of the Land Rights Act. A statutory function of a Land Trust is to hold title to land vested in it in accordance with the Land Rights Act and to exercise powers of the owner of such land for the benefit of the Aboriginals concerned: Land Rights Act, s 5(1)(a) and (b). Subject to Part II of the Land Rights Act, a Land Trust may acquire, hold and dispose of real and personal property: Land Rights Act, s 4(3)(c). A Land Trust must not deal with or dispose of, or agree to deal with or dispose of any estate or interest in land vested in it, except in accordance with ss 19, 19A or 20: Land Rights Act, s 19(1)(a).
The Original Lease names TALT as the lessor. It is expressed to have been granted to Munupi upon written directions given under s 19(3) of the Land Rights Act. Section 19 relevantly provides:
(2)With the consent, in writing, of the Minister, and at the direction, in writing, of the relevant Land Council, a Land Trust may, subject to subsection (7), grant an estate or interest in land vested in it to an Aboriginal or an Aboriginal and Torres Strait Islander corporation:
(a) for use for residential purposes by:
(i)the Aboriginal and his or her family; or
(ii)an employee of the Aboriginal or the corporation, as the case may be;
(b)for use in the conduct of a business by the Aboriginal or the corporation, not being a business in which a person who is not an Aboriginal has an interest that entitles him or her to a share in, or to a payment that varies in accordance with, the profits of the business; or
(c)for any community purpose of the Aboriginal community or group for whose benefit the Land Trust holds the land.
(3)With the consent, in writing, of the Minister, and at the direction, in writing, of the relevant Land Council, a Land Trust may, subject to subsection (7), grant an estate or interest in land vested in it to the Commonwealth, the Northern Territory or an Authority for any public purpose or to a mission for any mission purpose.
(3A)If a Land Trust is considering granting a lease under subsection (3), the relevant Land Council may, by notice in writing given to the Minister, request that, if the Land Trust and the Commonwealth intend to enter into the lease, the Executive Director:
(a) enter into the lease on behalf of the Commonwealth; and
(b) administer the lease.
The suggestion that the Original Lease was granted upon written directions given under s 19(3) of the Land Rights Act may not be correct: it is not immediately apparent that Munupi is an entity to whom an estate or interest in land may be granted under that provision. It may be that the Original Lease was granted under s 19(2), but nothing of moment turns on the point. The parties’ submissions assume that the Original Lease was validly granted to Munupi by TALT and that TALT’s power to grant the relevant interest is sourced in s 19 of the Land Rights Act. I will proceed on the same assumption.
The holding over clause in the Original Lease (continuing in effect under the Equitable Lease) is expressed in the following terms:
19 HOLDING OVER
19.1Should the Lessee continue to occupy the Demised Land beyond the expiration of the term of this Lease or any extension or renewal thereof with the consent of the Lessor it will do so on and subject to the covenants conditions and terms hereof as a quarterly tenant only … to be determinable at the will of either the Lessor or Lessee by three months’ notice in writing expiring on any day of the month.
Three observations may be made. First, the Original Lease is in the nature of a contract created under and giving rise to rights and obligations under private law. Second, the rights and obligations under the Original Lease were created consensually under the private law of contract: the Land Rights Act did not require TALT to grant a lease, nor did it require Munupi to enter into one. Third, the holding over clause operates mutually in the sense that either the lessor or the lessee may determine the Original Lease (and so bring the contractual relationship to an end) by giving “three months’ notice in writing expiring on any day of the month.” Each parties’ right to terminate the contract may be exercised unilaterally, the parties having freely contracted for the lease to be determined in that way.
The expression “notice to quit” is utilised in neither the holding over clause, nor any other clause of the Original Lease, nor the Land Rights Act. However, the expression has meaning under the laws of the Northern Territory, which governs the Original Lease: clause 29. Those laws include the Tenancies Act, Div 2 of which is headed “Repossession of business premises”. Where a landlord has given a tenant a “notice to quit” which complies with that Division, the landlord or an agent may at any time after the expiry of the term of the notice, apply to the Local Court for a warrant of possession: Tenancies Act, s 131. If an application for a warrant of possession is made during “the emergency period”, Div 2A applies so as to require the Local Court to refer the matter to the Northern Territory Civil and Administrative Tribunal for alternative dispute resolution. The “emergency period” is defined in s 11B by reference to certain measures taken in response to the COVID-19 pandemic. Section 11B(2) provides for the modification of the Tenancies Act, by gazettal notice, during the emergency period. Section 11B(5) provides that “a modification notice may require that a landlord must engage in a minimum period, not longer than 30 business days, of good faith negotiation with a tenant before the landlord issues a notice to quit.” By gazettal notice published in the Northern Territory Government Gazette on 28 April 2020, additional procedural requirements of that kind were introduced to affect business leases to which the Tenancies Act applies. The gazettal notice states:
During the emergency period a landlord must not give a tenant Notice to Quit unless the landlord has for a period of at least 30 business days, made good faith efforts to negotiate with the tenant and allow the tenant to remain in the premises.
The Notice to Vacate constitutes (or purports to constitute) both a notice in writing for the purposes of the holding over clause and a notice to quit premises for the purposes of the Tenancies Act. Its closing words state:
NOW TAKE NOTICE that you are required by the [Executive Director] TO QUIT AND DELIVER UP VACANT POSSESSION of the [Land] to the [Executive Director] by no later than 3 months from the date of service of this notice to quit upon you.
The grounds for review on the proposed originating application appear to be premised on (among other things) non-compliance with the requirements of the Tenancies Act, which are alleged to apply “mutatis mutandis” to the Executive Director’s powers or functions under the Land Rights Act.
The Notice to Vacate also contains a statement that on 26 June 2017, TALT granted to the Executive Director “a head lease” over the township of Pirlangimpi pursuant to s 19A of the Land Rights Act (referred to as a Township Lease).
Section 19A of the Land Rights Act has the heading “Land Trust may grant headlease over township”. Section 3AB(3) provides that, for its purposes, a “township” is (relevantly) an area of land that is prescribed by the regulations for the purposes of the subsection in relation to an applicable Land Trust only. Regulation 5AA of the Aboriginal Land Rights (Northern Territory) Regulations 2007 (Cth) prescribes a parcel of land on Melville Island as a township in relation to TALT. The Land falls within that township.
Section 19A(1) provides that a Land Trust may grant “a lease of a township to an approved entity” provided that certain consents are first obtained. As at 26 June 2017, an “approved entity” was defined to include a “Commonwealth entity” (also a defined term). The Minister may, by writing, approve a person for the purposes of the definition of a Commonwealth entity: Land Rights Act, s 3AAA.
The Township Lease is not in evidence before me. Neither party drew the Court to any provision of the Land Rights Act or any other material that might explain how the Executive Director might fall within the definition of an “approved entity” for the purposes of s 19A of the Land Rights Act. It was nonetheless common ground that the legal relationship between the Executive Director and Munupi was created and explained in part by s 19A(10) and (11), which provide:
Preserving any existing right, title or other interest
(10)Any right, title or other interest in land the subject of a lease granted under this section that existed immediately before the time the lease takes effect is preserved as a right, title or interest in that land after that time.
(11)If that right, title or other interest was granted by the Land Trust, then, at the time the lease granted under this section takes effect, that right, title or other interest has effect as if it were granted by the approved entity on the same terms and conditions as existed immediately before that time.
On the assumption that the Township Lease was granted to the Executive Director under s 19A(1) of the Land Rights Act on 26 June 2017, the legal relationship between TALT, the Executive Director and Munupi from the grant of the Township Lease were as follows:
(1)TALT is the proprietor of the land;
(2)TALT and the Executive Director are respectively lessor and lessee under and subject to the terms of the Township Lease;
(3)Munupi’s interest in the Land under and by virtue of the Equitable Lease is preserved;
(4)the Executive Director is taken to have granted to Munupi its interest in the Land; and
(5)accordingly, the Executive Director must be taken to enjoy the rights and obligations of TALT under the Equitable Lease (equivalent to the Original Lease), which include the holding over clause.
The effect of all of that is that Munupi has rights equivalent to that of a sub-lessee in relation to the Executive Director, notwithstanding that the Original Lease was granted before the Township Lease and the creation of the office of the Executive Director. To that extent, it may be accepted that s 19A of the Land Rights Act may erect legal relationships that could not come into existence under the general law. To the extent that either TALT or the Executive Director made “decisions” bringing about that state of affairs (including decisions to enter into the Township Lease), they are not the decisions that are sought to be challenged by Munupi on its proposed application for review.
The office of the Executive Director was established by amendments made to the Land Rights Act under the Aboriginal Land Rights (Northern Territory) Amendment (Township Leasing) Act 2007 (Cth). Its functions are set out in s 20C of the Land Rights Act. At all times from the grant of the Township Lease, those functions included:
(aa)if the Minister has agreed to a request under subsection 19(3A) or 20CA(2) in relation to a lease, and the Commonwealth intends to enter into the lease—to enter into, on behalf of the Commonwealth, the lease; and
(ab)to administer leases covered by paragraph (aa), including administering subleases and other rights and interests derived from such leases, in accordance with their terms and conditions; and
(ac)if the Minister has agreed to a request under subsection 20CA(2) in relation to a sublease, and the Commonwealth intends to enter into the sublease—to enter into, on behalf of the Commonwealth, the sublease; and
(ad)to administer subleases covered by paragraph (ac), including administering other rights and interests derived from such subleases, in accordance with their terms and conditions; and
(ae)to administer subleases acquired by the Commonwealth under subsection 20CB(2), including administering other rights and interests derived from such subleases, in accordance with their terms and conditions; and
(a)to enter into, on behalf of the Commonwealth, leases under section 19A; and
(b)to administer leases granted to the Commonwealth under section 19A, including administering subleases and other rights and interests derived from such leases, in accordance with their terms and conditions; and
(c)any other functions that are prescribed by the regulations, being functions relating to the matters referred to in this section.
On their face, some of these functions are solely referrable to specific statutory provisions, not all of which are directly relied upon by Munupi to explain its legal rights vis a vis the Executive Director or more generally. On the assumption that the Executive Director entered into the Township Lease under s 19A on behalf of the Commonwealth, the functions under s 20C(a) and (b) would appear to be applicable. The function under s 20C(a) confirms that the Executive Director had the capacity (conferred by the Land Rights Act) to enter into the Township Lease on behalf of the Commonwealth.
The parties jointly submit that it is a function of the Executive Director to administer the Equitable Lease by virtue of s 20C(b). To my mind, if that function was not expressly conferred under s 20C(b) it would arise by necessary implication as a consequence of the legal relationships created by, or explained by, s 19A(10) and (11) when a lease of the kind referred to in s 19A(1) is granted to the Executive Director. A capacity to enter into a contract must by necessity include the capacity to exercise rights and perform obligations under it. In my view, the functions upon which Munupi relied to support its argument (including those in s 20C(a) and (b)) appear to be directed to concepts of agency, in the sense that they confirm the Executive Director’s authority to do acts or things under the general law on behalf of the Commonwealth.
Whether the Executive Director entered into the Township Lease on its own behalf or on behalf of the Commonwealth remained unclear to me at the conclusion of argument. Thankfully, that issue is unnecessary to decide. On any view, I am satisfied that the Executive Director’s authority to exercise the rights of the lessor under the holding over clause is derived from the Land Rights Act, which confers upon it the capacity to contract and, by necessary implication, to perform contractual obligations and exercise contractual rights (including on behalf of the Commonwealth). That fulfils the first criterion for the decision to be regarded as a decision “made under” the Land Rights Act in accordance with the principles stated in Tang.
How, then, were Munupi’s rights or obligations affected by the decision?
On one view it might be said that the decision to invoke the holding over clause (whether or not by way of a “notice to quit” under the Tenancies Act) did not affect Munupi’s legal rights at all. At the time of the challenged decision, Munupi did not have an indefinite and unqualified right to occupy the Land. Its rights in equity to occupy the Land rose no higher than its contractual rights under the Original Lease. Those rights were defined by the holding over clause, which (with Munupi’s agreement) placed it in the vulnerable position as occupier on a quarterly periodic term, obliged to vacate the land upon three months written notice given by the Executive Director. Munupi also had a unilateral right to terminate the relationship (and so relieve itself of its obligations under the Equitable Lease) by giving the Executive Director three months’ notice in writing in accordance with the holding over clause.
I have some difficulty conceiving of the exercise of a contractual right by a party to a contract as affecting or obliterating the legal rights of the other party, even if the exercise of the right has the effect of bringing the contract to an end in accordance with its terms. If it were necessary to decide the point, I consider the decision to issue the Notice to Vacate did not alter Munupi’s legal rights, but rather triggered an obligation to vacate the Land in the very manner contractually agreed by Munupi. Munupi had an interest (amounting to a right for present purposes) in the due performance of the lessor’s obligations under the Equitable Lease. I would conclude that the issue of the Notice to Vacate may determine the Equitable Lease, but it does not deny, abrogate or infringe any legal right. My reference to contractual rights in this analysis must be understood as recognising that Munupi’s rights arise in equity, but are equivalent to those it enjoyed under the general law of contract. Whether assessed in accordance with the general law of contract or in equity, the result is the same.
Assuming that the decision sought to be challenged altered or affected Munupi’s legal rights, I would nonetheless conclude that the legal force and effect of the decision (and thus its effect upon Munupi’s rights) does not derive from the Land Rights Act in the requisite sense. As discussed earlier in these reasons, the Land Rights Act confirms the Executive Director’s capacity to contract and otherwise provides for its status as a head lessor vis a vis Munupi as sub-lessor. The Land Rights Act provided that Munupi’s interests must be taken to have been conferred by the Executive Director, but the statutory interposition of the Executive Director as head lessor affected neither the existence nor the nature of Munupi’s rights in the Land. Upon the grant of the Township Lease, what could previously be done by TALT under and in accordance with the Equitable Lease could only be done by the Executive Director under and in accordance with the Equitable Lease.
I have earlier concluded that the Land Rights Act confers upon the Executive Director the authority to administer leases (which may be taken to include the Original Lease), which fulfils the first criterion for the challenged decision to meet the description of a decision under an enactment. But it does not fulfil the second criterion.
The Notice to Vacate does not derive its legal force from or by virtue of the Land Rights Act. Rather, its service on Munupi merely triggers its private law obligation (equivalent to a contractual obligation) to vacate the Land. To the extent that the decision to serve the Notice to Vacate has legal force and effect, that force and effect is derived from the general law of contract and equity and not from the Land Rights Act. It matters not whether the Notice to Vacate was also (or purported to be) a “notice to quit” under the Tenancies Act. The proposed application for review under the ADJR Act is not framed in a way that identifies the Tenancies Act as an enactment to which the ADJR Act applies.
The Executive Director sought to draw an analogy from the facts and circumstances arising in King to the facts and circumstances arising in this case. The judgment in King is a helpful illustration of the application of principle, however in my view caution should be exercised when seeking to draw parallels with cases involving different facts and different enactments. The facts of the present case do not concern a decision as to whether or not to enter into a contract (as was the case in both General Newspapers and King) rather it concerns a “decision” to exercise an existing contractual right to bring a contract to an end in accordance with its terms. Whether a decision of that kind is a decision under an enactment must turn on a careful survey of the enactment under which the decision is alleged to have been made. No prior authority provides an answer to that question.
Before concluding I should add that any review of the decision to issue the Notice to Vacate is not a convenient mechanism to resolve the commercial and practical problem arising between the parties. An order setting aside the ‘decision’ could not preclude any further invocation of the Executive Director’s rights under the holding over clause. Nor has Munupi adequately explained why this Court should entertain arguments relating to the Tenancies Act in circumstances where the Local Court of the Northern Territory is vested with jurisdiction to determine the validity of notices issued or purportedly issued in accordance with the relevant law. Had the application been competent, an issue may have arisen as to whether this Court should decline relief in any event.
CONCLUSION
Munupi has sought an application for an extension of time in which to commence an application for review under the ADJR Act. That being the only relief sought on the originating application, it must follow that the proceeding should be dismissed. I do not consider Munupi should be granted the opportunity to amend the application so as to introduce any alternate claim for relief that this Court may have jurisdiction to grant.
I will hear the parties as to costs.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth. Associate:
Dated: 11 March 2022