Warnbi Aboriginal Corporation Kakadu v Northern Territory of Australia - [2023] NTSC 82

CITATION:Warnbi Aboriginal Corporation - Kakadu v Northern Territory of Australia & Ors [2023] NTSC 82
PARTIES:WARNBI ABORIGINAL CORPORATION – KAKADU
(ICN 4391; ABN 47 892 298 132)
v
NORTHERN TERRITORY OF AUSTRALIA
and
GUNDJEIHMI ABORIGINAL CORPORATION
(ICN 458; ABN 55 881 818 247)
and
GUNDJEIHMI ABORIGINAL CORPORATION JABIRU TOWN
(ICN 9378; ABN 95 611 625 538)
and
REGISTRAR-GENERAL FOR THE NORTHERN TERRITORY

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:2023-02297-SC
DELIVERED:  22 September 2023
HEARING DATE:  11 September 2023
JUDGMENT OF:  Huntingford AJ

CATCHWORDS:
EQUITY – Remedies – Interlocutory injunction – serious issue to be tried – promissory estoppel - balance of convenience – maintenance of status quo – injunction granted.
Corporations (Aboriginal and Torres Strait Islander) Act 1006 (Cth)
Supreme Court Rules 1987 (NT), rule 47.04
Barfuss v Altman [2008] NTSC 1; Bradto Pty Ltd v State of Victoria [2006] VSCA 89; Castlemaine Tooheys v South Australia (1986) 161 CLR 148; Lottoland (Australia) Pty Ltd v Minister for Racing, Gaming and Licensing [2020] NTSC 65; Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, referred to
REPRESENTATION:
Counsel:
Plaintiff:C Ford
First Defendant:  T Silvester
Second Defendant:  A Grimster
Third Defendant:  M Yates
Fourth Defendant:  C Sexton
Solicitors:
Plaintiff:De Silva Hebron
First Defendant:  Hutton McCarthy
Second Defendant:  Piper Grimster Jones
Third Defendant:  Ashurst Australia
Fourth Defendant:  Solicitor for the Northern Territory
Judgment category classification:    B
Judgment ID Number:  Hun2308
Number of pages:  17

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Warnbi Aboriginal Corporation - Kakadu v Northern Territory of Australia
& Ors [2023] NTSC 82

No. 2023-02297-SC

BETWEEN:

WARNBI ABORIGINAL CORPORATION – KAKADU
(ICN 4391; ABN 47 892 298 132)

Plaintiff

AND:

NORTHERN TERRITORY OF AUSTRALIA

First Defendant

AND:

GUNDJEIHMI ABORIGINAL CORPORATION
(ICN 458; ABN 55 881 818 247)
Second Defendant

AND:
GUNDJEIHMI ABORIGINAL CORPORATION JABIRU TOWN
(ICN 9378; ABN 95 611 625 538)
Third Defendant

AND:
REGISTRAR-GENERAL FOR THE NORTHERN TERRITORY
Fourth Defendant

CORAM: HUNTINGFORD AJ
REASONS FOR JUDGMENT
(Delivered 22 September 2023)
Introduction

The plaintiff has brought proceedings against the Northern Territory of Australia, Gundjeihmi Aboriginal Corporation and Gundjeihmi Aboriginal Corporation Jabiru Town. The Registrar-General for the Northern Territory was joined as a fourth defendant for the purpose of seeking an order restraining registration of a lease over a parcel of land in Jabiru which is the subject of the plaintiff’s claims against the second and third defendants.
The plaintiff seeks various orders against the first defendant, including declarations to the effect that the first defendant is estopped from denying that it is liable to offer the plaintiff a contract for provision of certain services to Mudginberri homeland or Manabadurma town camp (“the Jabiru communities”) and/or is required to offer the plaintiff such a contract or, alternatively, that such a contract in fact exists.
By summons filed 29 June 2023 the plaintiff seeks an interlocutory injunction restraining the first defendant from taking steps to seek an expression of interest (EOI) from other persons to perform the services in relation to the Jabiru communities, or from entering into a contract with any other person in relation to those services.[1]
On 4 and 11 September 2023 I heard argument as to the application for an interim injunction preserving the status quo pending the hearing and determination of the substantive proceeding.
Factual background
There is little dispute as to the facts. The plaintiff is an Aboriginal and Torres Strait Islander Corporation registered pursuant to the Corporations (Aboriginal and Torres Strait Islander) Act 1006 (Cth). It is a not for profit corporation, created in 2004 for the purpose of providing homeland services to Aboriginal communities under agreement with the first defendant. It has provided municipal and housing maintenance services to 13 communities, outstations and/or town camps in the Jabiru area since about 2005 under what is known as the “Homelands Program”.[2]
The Homelands Program is a government service delivery program managed by the first defendant for provision of municipal and housing maintenance services to Aboriginal homelands and communities with funding provided by the Commonwealth government. The funding is distributed to service providers through grant funding agreements. The last agreement between the plaintiff and the first defendant including all 13 homelands commenced on 1 July 2018 for a term of five years concluding on 30 June 2023.
Approximately 40% of the services performed, and grant funding received, by the plaintiff is referrable to the Jabiru communities.
On 10 October 2022 the first defendant wrote to the plaintiff, and other service providers, in these terms:
Dear homeland service provider
As you are aware, current service agreements under the Homelands Program will expire on 30 June 2023.
In recognition of the number of significant reforms currently impacting the homeland service sector, and feedback provided by Aboriginal Housing NT, the Department wishes to advise that existing service providers will be offered new two year service agreements commencing 1 July 2023.
Homeland Services will work with service providers to undertake a new occupancy survey to inform funding allocations for eligible homelands for 2023-24 and 2024-25.
This approach will provide funding certainty while the NT Government works with land councils, Aboriginal Housing NT and the Australian Government to progress the Homelands Housing and Infrastructure Audit and the development of joint investment priorities for homelands, including consideration of the Australian Government’s $100 million commitment for homelands. Further details regarding the $100 million are expected to be provided by the Commonwealth Budget on 25 October 2022.
Please note:
·     The budget for the Homelands Program will be maintained at approximately $40 million p.a. This does not include the proposed $100 million investment by the Australian Government.
·     Homeland Services will consult with service providers regarding a number of practical changes to the Homelands Program for introduction from 1 July 2023. Changes will cut down on administration and provide more flexibility for residents and service providers. Proposed changes include:
oConsolidating Municipal and Essential Services (MES), Housing Maintenance Services (HMS) and Homelands Jobs into a single annual grant for each homeland
oSimplifying reporting requirements
oUpdated advice regarding:
§how the Homelands Program interacts other programs/organisations which operate on homelands; and
§common issues, including service contributions, insurance, council rates and provision of diesel.
·     For a small number of homelands, there will be a change in service provider to meet Local Decision Making commitments or to re-align services based on historic funding arrangements. Homeland Services will be in touch with impacted providers.
·     Service providers must be compliant with the terms of their current service agreement to be eligible for a new two year service agreement.
Please advise Homeland Services ([email protected]) by 1 November 2022 if your organisation does not wish to continue as a service provider under the Homelands Program beyond 30 June 2023.
Regards,
[emphasis in original]
On 4 May 2023, in a meeting between the Executive Director Remote Housing Reforms and Programs on behalf of the first defendant and representatives of the plaintiff, the plaintiff was advised that the first defendant intended to issue an EOI in relation to service provision for the Jabiru communities from 1 July 2023. The first defendant advised the plaintiff that the EOI would be open and transparent and would be progressed in two to three weeks’ time. The first defendant also said that it may well be that the only organisation that would respond would be the plaintiff.
On 18 May 2023 the acting CEO of the relevant first defendant Department,[3] along with other representatives of the first defendant, met with representatives of the plaintiff and restated that the plaintiff would be offered a contract in relation to 11 homelands, but not the Jabiru communities, which would be subject to the EOI process.
The reason given by the first defendant for its decision to require an EOI process for the services contracts for the Jabiru communities was to support local decision making.
On 19 May 2023 the acting CEO wrote to the plaintiff confirming the advice from the meeting of the previous day.
On 21 June 2023 the plaintiff was advised, via its lawyers, that the first defendant would enter into an arrangement with the plaintiff to carry out the services required to support the Jabiru communities until appointment of a new service provider. The terms were that the plaintiff would continue to provide the services “…under the current agreement to provide the services and the Department paying for those services on production of valid tax invoices”.[4] Services have been provided in accordance with that arrangement from 1 July 2023 up to the present time.
On 17 July 2023 the plaintiff and the first defendant executed a new contract for service delivery to 11 homelands, not including the Jabiru communities, for a period of two years from 1 July 2023.
Interlocutory injunction
The test for an interlocutory injunction is the well known formula from Castlemaine Tooheys v South Australia,[5] The applicant must establish that there is a serious issue to be tried and that the balance of convenience favours the grant of the injunction. It is unnecessary for the plaintiff to go so far as to establish a probability of ultimate success, but they must show that there is a sufficient likelihood of success to justify the preservation of the status quo until the matter is determined.[6] In Barfuss v Altman[7] the Court of Appeal said
The requisite strength of the probability of ultimate success that must be demonstrated depends upon the nature of the rights asserted and the practical consequences likely to flow from the orders sought.
Serious issue to be tried
The first defendant submits that there is no serious issue to be tried.
Although the plaintiff’s statement of claim sets out three causes of action, promissory estoppel, judicial review and breach of the Australian Consumer Law, the interim injunction application was argued on the basis that the plaintiff’s primary cause of action is equitable estoppel, and these reasons are directed to that argument.[8]
The parties were in agreement that the elements of the equitable estoppel cause of action are as set out by Mason J in Waltons Stores (Interstate) Ltd v Maher where his Honour said:[9]
In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff’s action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.
Assumption that legal relationship would exist and not free to withdraw
The first defendant argues that the statements in the 10 October 2022 email, read as a whole, could not reasonably be construed as a representation that the plaintiff would be offered a new two year agreement for all 13 communities. Counsel submitted that, when the statement relied upon by the plaintiff is read with the qualifications that “for a small number of homelands, there will be a change in service provider”, and that service providers must be compliant with their current agreements in order to be eligible for the new contract, it was not reasonable for the plaintiff to assume that it would receive a new contract. The first defendant also points out that the email did not convey that new service agreements would cover all current homelands and submits that a reasonable person would have construed the email as meaning that new service agreements would be offered for some, but it was unclear what, homelands.
The first defendant’s email of 10 October 2022 said that the first defendant would be “in touch with impacted providers”. The plaintiff relies heavily upon the fact that there was no communication about which homelands would be included in the new contracts from the first defendant until 4 May 2023. The plaintiff argues that this delay is crucial to the reasonableness of the plaintiff’s expectation that the contract would be entered into, and its reliance on that expected state of affairs.
Clearly this is the nub of the argument. Had the first defendant advised the plaintiff of its position within a reasonable time it would be much less likely that the plaintiff could have the expectation it alleges. However, by the time that the first defendant first advised that the Jabiru communities would not be included in the new contract there was less than two months remaining on the previous contract. The first defendant argued that in other years contracts had been renewed after the end of the previous contract, sometimes significantly later, however I do not think that is relevant because renewal is a completely different situation. If anything, that past practice tends to support the argument of the plaintiff that it expected a new contract.[10] The first defendant also argued that this is a large program and it takes time to manage. While this is no doubt correct, there is no evidence upon which I could find that telling the plaintiff that the EOI process was to be undertaken in relation to the Jabiru communities was a matter which required nearly seven months to address.
The first defendant also argues that it was not reasonable for the plaintiff to expect that it would be offered a new service agreement because it was not compliant with the terms of its existing contract. The non-compliance was lack of submission of Service Delivery Plans (SDPs) for seven of the homelands it provided services to, and failure to submit the 2021-2022 performance report which was due on 31 August 2022. The plaintiff does not dispute that it did not provide seven of the SDPs or the performance report by the due date.
The plaintiff says that it did not regard the failure to provide the SDPs as a non-compliance likely to disentitle it to further contracts, and that that interpretation was reasonable based upon past practice. Annexure AY 66 of Mr Yadav’s affidavit of 18 August 2023 is an email train between the plaintiff and the first defendant as to the non delivery of the SDPs between 4 August and 25 October 2022. That correspondence shows that the plaintiff provided three of the SDPs at the first defendant’s prompting, and promised to complete the rest when it could get community meetings organised. Mr Yadav says in his affidavit that he attempted to arrange the necessary meetings to complete each SDP but was unsuccessful, with the result that seven remained outstanding. There is no evidence that the first defendant took any further action in relation to this issue after 25 October 2022.
Failure to provide SDPs is a matter which can result in withholding of payments under the agreement. Mr Yadav says that notwithstanding past failures, funding was released by the first defendant.[11] The plaintiff argues that, overall, the first defendant did not enforce the terms of the previous service agreement in a way which would lead the plaintiff to understand that the failure to provide SDPs was a barrier to receipt of a new contract. There was, for example, no recourse to the dispute resolution clauses in the contract. In addition, there was no ultimate refusal to enter into the new two year contract with the plaintiff for 11 of the 13 homelands it had previously serviced. The plaintiff says that the first defendant has not raised any service delivery, as opposed to administrative compliance, failures with the plaintiff.
First defendant induced the plaintiff to adopt the expectation
The first defendant argues, on the same facts set out above, that it has not induced the assumption or expectation of the plaintiff that it would receive a new contract. The plaintiff’s argument to the contrary is also based on the same ground.
Both parties made submissions as to the importance of further email communication between the parties as to completion of a survey in relation to inducement. I note those submissions but in my view that information was not helpful either way for the purposes of this application because it was not clear on the evidence whether that requirement was part of the existing contract or in preparation for the new contract.
Given that the first defendant sent the email in the terms it did, and then took no further steps until 4 May 2023, it is arguable that it has induced the expectation the plaintiff asserts.
Reliance
The plaintiff pleads in its consolidated statement of claim that it relied upon the representation in various ways. They are claimed to be: entering into an agreement with the National Indigenous Australians Agency for a project to construct a hybrid power station at Mudginberri (and to upgrade power stations at two other communities), and therefore committing its resources to that project; assessment for eligibility for the Homelands Program; offering contracts to staff needed to service the Jabiru communities; and ordering its financial affairs in anticipation of the contract.
The evidence about extension of staff contracts is contained in the affidavit of Avinash Yadav of 18 August 2023. Mr Yadav deposes that the plaintiff’s staff are employed on fixed term contracts expiring on 30 June of each year in order to line up with the funding cycle. He says that, based upon the expectation of two further years funding, the plaintiff informed each employee orally and in writing on 28 February 2023 that their employment contracts would be renewed for two years.
The first defendant argues that that is no more than a usual business risk because the terms of the service agreement include a “termination for convenience” clause, which enables termination of the contract at the election of the first defendant upon 90 days notice.[12] However, that argument is unhelpful because that is not the situation which has arisen. In the event that there were to be a termination for convenience there is usually a requirement to compensation for reasonable and substantiated expenses related to the termination.
First defendant knows or intends plaintiff would rely
The first defendant argues that it did not know that the plaintiff would rely upon the statements in the way it alleges it did.
The plaintiff submits that knowledge is easily inferred because the very nature and purpose of the email of 10 October 2022 was to give assurance to service providers as to ongoing funding. On its face it appears likely that that was at least one of the purposes of the email.
The plaintiff also argues that the first defendant would have known from dealings with many such agreements that service providers in the position of the plaintiff need, and would rely upon, such assurance to organise their affairs so that the important services they provide continue uninterrupted.
Detriment

In relation to whether the plaintiff will suffer detriment if the promise of the first defendant to enter into a contract with it to provide services to the Jabiru communities is not fulfilled, Mr Yadav’s affidavit of 18 August 2023 deposes to the fact that the plaintiff will need to terminate three full-time staff contracts if the Jabiru communities are not included in the services agreement. In that case, affected staff will be entitled to redundancy payments which the plaintiff would not otherwise be obliged to make. The quantum of the potential redundancy payments is unknown.
Failure to act to avoid detriment
The first defendant also argues that the plaintiff cannot show that the first defendant has failed to act to avoid the detriment. The plaintiff submits that that failure is constituted by the failure of the first defendant to offer the service contracts for the Jabiru communities. The success of this element is dependent upon the acceptance of the facts the plaintiff sets out to prove in relation to the earlier elements, namely reasonableness, reliance and knowledge.
Balance of convenience
In Bradto Pty Ltd v State of Victoria the Victorian Court of Appeal said
…the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’, in the sense of granting an injunction to a party who fails to establish his right at trial, or in failing to grant an injunction to a party who succeeds at trial.[13]
This passage highlights the relationship between the serious issue to be tried and the balance of convenience.[14]
The first defendant argues that the balance of convenience is against the plaintiff because if it is restrained from calling for EOI for the Jabiru communities services contract it will:
a.Have reduced capacity to effectively manage the plaintiff to ensure that appropriate levels of service are provided to the Jabiru communities because the mechanisms which enable the first defendant to manage poor performance under the contract will not be available;
b.The first defendant will pay an increased rate for service delivery to the Jabiru communities and that this will result in the inequitable distribution of funding amongst homelands. The evidence is that under the short-term agreement for service provision currently in place between the parties the first defendant is paying 6.5% more than would have been payable under a long-term contract. The first defendant says that this reduces the pool of funding for other communities, but does not describe how;
c.The first defendant will be prevented from implementing the public policy of the first defendant to use a contestable funding approach; and
d.The absence of a long term service provider for the Jabiru communities will negatively impact funding for Mudginberri homeland recently made available through the Commonwealth “HHIP”[15] program for improvements. The first defendant says that because there is no long-term service provision agreement in place for Mudginberri that the HHIP funding will need to go through an EOI process, which will cause delay in service provision and increase costs, and that there is risk associated with that because the funding must be expended before 30 June 2024.
The first defendant also argued that the granting of an interim injunction was tantamount to granting final relief because the time which it will take to hear the matter will mean that the two year period for which the service contract would have been in place will have substantially elapsed. This is a matter I have given very serious consideration.
The plaintiff argues that the failure to grant an interlocutory injunction will mean that the benefit of this litigation is lost because, once another service provider is appointed, there will be irreparable damage to its business with the possibility that it will become unviable as a provider for the 11 communities it is required to service. This is because it will lose staff and be unable to leverage support for across organisation costs due to the loss of 40% of its revenue.
The plaintiff submits that damages are not an adequate remedy. The plaintiff is not a commercial entity. The evidence of Mr Yadav is that without the contract for the Jabiru communities, the plaintiff will have a reduced ability to carry out its functions in the other 11 communities.[16] The plaintiff also argues that sending out the EOI now will damage its reputation as a service provider and make it less likely to be considered for other funding which it requires to service the homelands for which it provides services.[17]
Consideration
I am satisfied that the plaintiff has an arguable case for an equitable estoppel, sufficient to establish that there is a serious question to be tried.
I am also satisfied that the detriment to the first defendant is likely to be less than the detriment to the plaintiff if the injunction is not granted. That is because:
a.The plaintiff is currently performing the services under agreement with the first defendant and that is the case irrespective of this dispute because the first defendant’s delay in preparing for an EOI process meant that it was unable to appoint a new service provider before the end of the plaintiff’s previous contract on 30 June 2023;
b.The first defendant has conceded that the plaintiff may apply in any EOI process and may be the only party which responds;[18]
c.For the above reasons, the status quo favours the plaintiff;
d.The plaintiff is likely to suffer a potentially serious reduction in its capacity to perform services, including under its remaining contract, if a different service provider is appointed, for which damages is unlikely to be a satisfactory remedy; and
e.The restriction upon the first defendant’s ability to engage in an EOI process or engage another contractor is likely to have a relatively minor impact upon its business.
In relation to the first defendant’s claim that it cannot effectively manage the plaintiff’s contract in the interim, I am not convinced that this is a significant practical problem. First, the plaintiff and the first defendant are still in a contractual relationship in relation to the other 11 communities, and the plaintiff could be expected to perform properly in relation to those communities. It would obviously be contrary to the plaintiff’s long term interest to perform poorly in servicing the Jabiru communities. Second, Exhibit P1 makes it clear that the interim service provision continues on the same terms and conditions as the previous service contract, except as expressly varied. The sanctions and dispute resolution clauses in that agreement therefore continue to apply.
In relation to the arrangements for the HHIP funding, it may be that there is some inconvenience to the first defendant in managing that program as a result of the lack of a long term service agreement. However, given that it would take several months, based upon the first defendant’s evidence, to conduct an EOI and put a new service contract in place for the Jabiru communities in any event, I do not think that an interlocutory injunction will make the first defendant’s position significantly more difficult in that regard at this point.
The first defendant’s claim that it is being prevented from implementing its public policy to use contestable processes for allocation of funding for services contracts is not a reason not to make the interlocutory injunction. The contestable processes are, as set out in the rules document,[19] applied flexibly. There was no evidence that would lead me to the view that granting an interlocutory injunction would seriously impinge the first defendant’s overall management of the program. Nor was there evidence that other relevant policy objectives, such as Local Decision Making would be affected.
Finally, in the event that a new issue arises before the proceeding is finally determined which has the potential to affect the balance of convenience, the first defendant can bring the matter back to court seeking a variation of the interlocutory injunction, an urgent basis if necessary.
However, while the balance of convenience currently favours the plaintiff, that will not always remain the case. The longer the proceeding takes to resolve, the more the balance will move towards the first defendant. That is because the plaintiff’s claim is naturally time limited. It is not reasonable, nor do I understand the plaintiff to claim, that the first defendant cannot, via and EOI or some appropriate process, engage an alternate contractor in the future in relation to some or all of the homelands presently serviced by the plaintiff.
The most significant concern is the risk that if an interim injunction is in place for a significant period, close to or in excess of the period for which the plaintiff says that they had a legitimate expectation of a service contract, it may place the plaintiff in a better position than if it had been successful in the litigation, or awarded the contract in the first place. That would be unfair.
While there is a risk that the practical effect of an interim injunction might be to put in place a circumstance which means that the plaintiff is successful by simply “waiting it out”, that is a risk which can be addressed by effective case management. In my view this proceeding should not be left to languish but should be heard and determined as soon as possible, at least so far as the injunctive and declaratory relief against the first defendant is concerned.
Having considered all of the above factors, I am of the view that, although the balance of convenience favours maintaining the status quo by making an interlocutory injunction, it should be made on conditions. First, the plaintiff must give the usual undertaking as to damages. This will go some way towards removing the risk of financial loss to the first defendant in the event that the plaintiff is unsuccessful at trial. I note that counsel for the plaintiff advised the Court on the last occasion that he had instructions that the plaintiff would give such an undertaking.
Secondly, the interlocutory injunctions should be appropriately limited in order to avoid placing the plaintiff in a better position than it would have been if awarded the service contract, and to avoid any unnecessary restriction upon the first defendant.
Therefore, I propose that the interlocutory injunction is in these terms:
a.That until further order, or 30 June 2025, whichever is sooner, the first defendant is restrained from entering into any contract for municipal services and housing repair and maintenance in relation to the Jabiru communities with an organisation other than the plaintiff; and
b.That until further order, or until 1 September 2024, whichever is sooner, the first defendant is restrained from seeking expressions of interest for provision of municipal and housing repair services to the Jabiru communities pursuant to the Homelands Program.
The limitation of 1 September 2024 is suggested to allow sufficient time for an EOI process to take place in late 2024 and into early 2025 in order to appoint a service provider for the period commencing 1 July 2025.
Finally, it is desirable that the issue of the injunctive relief and the associated declarations sought by the plaintiff against the first defendant are resolved as soon as possible. I propose to make appropriate timetabling orders with a view to hearing the parties as to whether the declaratory and injunctive relief sought by the plaintiff against the first defendant should be determined as a separate question in the proceeding in accordance with rule 47.04 of the Supreme Court Rules 1987 (NT) and, if so, the form of that question. Alternatively, I am open to considering whether the whole proceeding might be resolved at an earlier time.
I will hear the parties as to the final form of the orders.
The question of costs of this application is reserved.
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[1] Expression of Interest in this context is defined in the Northern Territory Government Grants for Service Provision – Rules and Guidelines part of annexure MM1 to the affidavit of Michael McCarthy affirmed 3 August 2023, p 60. It is also noted that clause 3 of the document states that funding agreements are legal binding contracts between the NT Government and the service provider.

[2] Originally the plaintiff provided services to 12 communities, Manabadurma was added at the request of the first defendant in 2012.

[3] The Department of Territory Families, Housing and Communities

[4] Exhibit P1, email from K Christopher to D De Silva, 21 June 2023

[5] (1986) 161 CLR 148

[6] Lottoland (Australia) Pty Ltd v Minister for Racing, Gaming and Licensing [2020] NTSC 65, [14]

[7] [2008] NTCA 1, 19, per Southwood J

[8] Transcript 4/9/2023, p. 13. It is not suggested that the plaintiff abandoned the other grounds.

[9] (1988) 164 CLR 387, per Mason J 428-429

[10] Although it was not specifically argued, and therefore I do not rely upon it, I also note clause 2.3.1 of the document referred to at above.

[11] Affidavit Avinash Yadav 18 August 2023, [12]

[12] The actual clause was not in evidence.

[13] [2006] VSCA 89, [35]

[14] Ibid, [73]

[15] Homelands Housing and Infrastructure Program

[16] Affidavit Avinash Yadav 28 June 2023, [54]

[17] Affidavit Avinash Yadav 28 June 2023, [36] – [40]

[18] Transcript 4/9/2023, p 30

[19] See above