Federal Court of Australia

Dann v Chief Executive Officer (Housing) (Northern Territory) [2026] FCA 840

ORDERS

THE COURT ORDERS THAT:

1.    These proceedings be stood over to a date to be fixed by the Registrar for the making of (a) substitution orders; and (b) final orders dismissing the application in accordance with this judgment.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1.1    The application for leave to appeal

1    By interlocutory application dated 9 April 2026 the applicants seek:

(1)    an extension of time to seek leave to appeal from the orders made by the primary judge on 3 March 2026 as amended on 5 March 2026 (3 March Orders); and

(2)    leave to appeal from the 3 March Orders and also orders made by the primary judge on 26 March 2026 (26 March Orders).

2    Three decisions of the primary judge are relevant to the present application; ex tempore reasons delivered on 19 February 2026 (February judgment) and on 3 March 2026 (March judgment), and written reasons delivered on 15 April 2026 in Dann v Chief Executive Officer (Housing) (Northern Territory) [2026] FCA 442 (April judgment).

3    The proceedings were commenced under Part IVA of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and relate to the provision of public housing to Aboriginal people living in 73 remote communities in the Northern Territory. The lead applicants are Aboriginal people who at relevant times occupied houses in the community of Gunbalanya. The respondent is a statutory authority responsible for administering housing in town centres and remote communities in the Northern Territory under the provisions of the Housing Act 1982 (NT) (Housing Act) and the Residential Tenancies Act 1999 (NT).

4    The orders from which the applicants seek leave to appeal are all interlocutory matters of practice and procedure and which relate to the trial preparation and timetabling of the matter for further hearing. The principles governing the grant of leave are well established. A recent restatement of them is in AZO24 v Commonwealth of Australia [2025] FCAFC 77 at [32]‍–[33] (Raper J, Wigney J agreeing at [5], Lee J agreeing at [11]):

… The Court’s discretion must be exercised judicially in a way that best promotes the overarching purpose in s 37M(3) of the Federal Court Act: Nationwide News Pty Ltd v Rush [2018] FCAFC 70 at [2]. In Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at 398‍–‍99, this Court identified the two primary considerations for determining the question of leave to appeal: (1) whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court; and (2) whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

However, when considering whether to grant leave to appeal from interlocutory orders, account is taken of the subject matter of those orders and whether they relate to points of procedure or determine substantive rights. In the latter case, leave will be more readily granted: Décor at 400; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; 104 FCR 564 at [43] per French J, as he then was, (Beaumont and Finkelstein JJ agreeing). However, an applicant seeking leave to appeal must still show that the decision below is attended by sufficient doubt, and that substantial injustice would flow from the decision to refuse leave: Sandhurst Trustees Ltd v Clarke [2015] FCAFC 21; 321 ALR 1 at [17] citing Wills v Australian Broadcasting Company [2009] FCAFC 6; 173 FCR 284 at [31] per Rares J (with whom Emmett J agreed).

5    As the decisions of the primary judge were discretionary in nature, it is necessary for the applicants to satisfy the requirements of House v The King [1936] HCA 40; CLR 499 at 504–5 (Dixon, Evatt and McTiernan JJ):

… The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. …

6    An extension of time is required for leave to appeal from the 3 March Orders because the applicants sought first to persuade the primary judge that the 3 March Orders were made in error. That application failed and led to the 26 March Orders. Delay in that regard is short and explained. The present application will be determined on the basis of the question of leave to appeal.

7    The applicants rely on an affidavit in support affirmed by their solicitor, Timothy Michael Luke Finney of Phi Finney McDonald, dated 9 April 2026. He refers to an extensive affidavit relied upon before the primary judge, being his affidavit dated 19 March 2026 (9th Finney affidavit), affirmed in support of the applicants’ (then) application to vary the 3 March Orders.

8    The respondent opposes the grant of leave and filed no evidence in answer. Both parties filed written submissions in support of their positions.

1.2    The proceedings

9    The primary judge summarised the proceedings in the April judgment. The applicants claim damages and other remedies in connection with the condition and repair of the houses in which they and other group members reside in remote Aboriginal communities in the Northern Territory.

10    The presently applicable pleading is a Fourth Amended Statement of Claim which is structured in 10 parts. A claim for breach of contract and breaches of the Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth)) (ACL) is set out in Parts C and D of the Statement of Claim. The breach of contract claim concerns alleged breaches of four contractual terms, defined as the Habitable Premises Term, the Health & Safety Term, the Secure Housing Term and the Repair Systems Term (Contract Claim). The Contract Claim is structured by pleading the first three of these Terms, and particulars are given of the facts and circumstances of the lead applicants only, with the caveat that particulars “relating to individual Group Members may be provided following the trial of common questions or otherwise as the Court may direct”. The Repair Systems Term is incorporated within Part D of the Statement of Claim and is expressed to give business efficacy to all other Terms and it incorporates references to the other pleaded Terms.

11    Parts E and F plead a claim for unconscionable conduct, Part G is a claim for restitution and Part I is a claim under the Racial Discrimination Act 1975 (Cth). Part H concerns the extension of limitation periods in respect of the ACL causes of action.

12    On 3 July 2025 the Court made orders (3 July Orders) for the preparation of the trial, which was then set down for hearing (and remains set down for hearing) before the primary judge for four weeks commencing on 12 October 2026, with a further two-week tranche commencing on 30 November 2026.

13    The 3 July Orders provided the original trial timetable for matters that the initial trial was to address, being:

(a)    the named applicants’ claims against the respondent; and

(b)    the common issues set out in a schedule containing the issues.

With the first two weeks of the trial to take place in Darwin.

14    The 3 July Orders included a notation that the parties intend to revisit the scope of the common issues after the applicants’ evidence has been filed.

15    The original trial timetable provided that the applicants were to file and serve any lay evidence upon which they intend to rely by 15 October 2025. A procedure was also set out for the conferral between the parties in relation to any proposed modification of the common issues, with any argument in respect of any proposed modifications to the common issues listed for hearing on 1 December 2025.

16    Argument was heard on 10 December 2025 and on 19 December 2025, and in response to orders made during the 10 December 2025 hearing, the applicants filed a proposed fifth amended Statement of Claim (draft amended Statement of Claim) and on 30 January 2026 a supplementary schedule of issues setting out the scope of the case that the applicants wished to advance was filed.

17    The proceedings next came before the primary judge on 19 February 2026. During argument, the primary judge raised the possibility that the scope of the initial trial would be confined to trying facts and circumstances alleged by the lead applicants only in connection with the contract claims in Parts C and D of the pleading. The respondent proposed orders to give effect to that suggestion.

18    At the conclusion of the hearing on 19 February 2026, the primary judge gave ex tempore reasons, refusing leave to file the draft amended Statement of Claim and listing the proceedings for further case management on 3 March 2026.

19    A hearing was then conducted on 3 March 2026 at which the primary judge gave the March judgment and made the 3 March Orders. At that time it was apparent to the primary judge that the applicants’ evidence relevant to the unconscionable conduct and Racial Discrimination Act claims could not be ready by filing deadlines and consequently by October 2026 for the commencement of the trial without prejudicing the fairness of the hearing for the respondent.

20    Accordingly, the primary judge changed the scope of the initial trial. Order 2 of the 3 March Orders is as follows:

2.    The Initial Trial is confined to:

(a)    the facts and circumstances pleaded in Parts A-D and (where relevant) Part H of the [Statement of Claim] including the facts and circumstances alleged in connection with the lead applicants as particularised therein;

(b)    the particulars facts and circumstances alleged in connection with the lead applicants wheresoever they appear under the heading “particulars” in Parts E to J and I of the [Statement of Claim];

(c)    the facts and circumstances alleged in the affidavits of the Gunbalanya claimants filed thus far in the proceeding, provided that particulars are given of those facts and     circumstances in accordance with paragraph 4.

3.    The determination of any question of fact or law relating to the individual circumstances of any claimant referred to in these orders shall be binding on that claimant and the respondent, and shall not be revisited in any subsequent trial, whether or not the claimant is named as a party to the proceeding.

21    The reference to the “Gunbalanya claimants” is to eleven named people whose evidence had been filed by the applicants but who are not the lead applicants. These deponents were witnesses to be to be called in aid of the proof of some aspects of the lead applicants’ own cases.

22    The applicants then filed an interlocutory application and the 9th Finney affidavit in support, seeking orders to vary the 3 March Orders such that that the initial trial of the matter encompass the whole of the applicants’ claims against the respondent including Parts E, F, G, H and I of the Statement of Claim and that the parties have a reasonable opportunity to prepare for the initial trial. The interlocutory application sought orders vacating the initial trial date and the current pre-trial timetabling orders and had the intention (according to the 9th Finney’s affidavit) of providing an opportunity to bring interlocutory applications relevant to the scope of the initial trial. The interlocutory application also proposed a new timetable for trial preparation including in respect of the filing of updated pleadings.

23    Written submissions were filed prior to the 26 March 2026 hearing. At the conclusion of the hearing the Court made the 26 March Orders for a new trial timetable which relevantly provided:

1.    Subject to further orders, the matter be listed for trial commencing at 10:00am (ACDT) on 12 October 2026, for a period of four weeks, and thereafter at 10:00am (ACDT) on 30 November 2026 for a period of two weeks (Initial Trial).

2.    The Initial Trial is confined to:

(a)    the facts and circumstances pleaded in Parts A-D and (where relevant) Part H of the [Statement of Claim] in respect of the lead applicants’ individual claims, and any set off or counterclaim responsive to the claims contained therein;

(b)    the particular facts and circumstances alleged in connection with the lead applicants wheresoever they appear under the heading “particulars” in Parts E to J and I of the [Statement of Claim].

3.    The initial trial is to commence in Gunbalanya for a period of one week, then be heard in Darwin for one week, and thereafter at such places as the Court may determine.

(Bold in original.)

24    In short, the applicants’ application to vary order 2(c) of the 3 March Orders was allowed but its attempt to reverse the effect of the 3 March orders and to vacate the hearing failed.

1.3    The proposed grounds of appeal

25    Proposed ground 1 is to the effect that the primary judge’s conclusion on 19 February and 3 March 2026 that there was a breach of procedural fairness to the respondent that required a change in scope of the initial trial to enable them to have a reasonable opportunity to respond, was in error.

26    Proposed grounds 2–4 are to the effect that the primary judge erred in making orders for the determination of separate questions in the form of order 2 of the 3 March Orders, contending that they would determine idiosyncratic issues leaving significant issues for later hearing, cause additional expense, or were not justified or were unreasonable or plainly unjust under the FCA Act.

27    Proposed ground 5 concerns the practical application of order 2(c) of the 26 March Orders, as it applies to the claim to be advanced at the initial trial.

28    The applicants advance a further proposed ground of appeal which is directed to the 26 March Orders. It is based on the contention that by failing in those orders to remove or remediate the errors in the 3 March Orders the primary judge erred. This ground in effect relies for its success on grounds 1–4.

29    No substantive submissions were advanced in relation to proposed ground 5 or the further ground concerning the 26 March Orders and they are not addressed further below.

2.    THE JUDGMENTS

2.1    The February judgment

30    The primary judge considered the issue of whether it would constitute a breach of procedural fairness if the initial trial were to proceed on the basis of the applicants’ draft amended Statement of Claim, in the context of a complaint by the respondent that insufficient notice had been provided of the case that the applicants intended to advance insofar as it concerned the filing of evidence of the Gunbalanya claimants.

31    The primary judge noted that the Statement of Claim pleaded no defects and breaches in respect of the contractual terms other than with respect to the lead applicants and that it had never been asserted by the applicants in the Statement of Claim that the initial trial would include a trial of the individual circumstances of claimants other than the lead applicants in respect of the specific contract claims and no particulars had been provided of defects as pleaded going beyond that case. The primary judge was satisfied that the applicants had not otherwise given notice of the allegations of fact at the level of the defects alleged at certain properties at certain times and that the respondent was accordingly not aware of the case to meet.

32    The primary judge rejected the application to amend the Statement of Claim for two reasons. First, the proposed amendments were not adequately particularised. Secondly the proposed pleading extended the factual dispute in relation to the Racial Discrimination Act claim to incorporate evidence of defects in housing beyond the lead applicants. The primary judge said:

In correspondence the respondent expressly asked the applicant to identify whether in its Racial Discrimination Act claim that it would be making allegations or seeking to prove that there existed defects in particular properties other than the properties of the lead applicants, and how that might be done. For example, whether or not it might be done by reference to communities, or statistically significant or representative portions of the community.

In response the applicant said that it would not be presenting its case in the way that the respondents had queried. As I have said, the correspondence will be articulated in my written submissions [sic judgment]. It is more nuanced than that, but it also includes a letter of March 2025 in which the respondents set out their understanding of certain parts of the pleading. The applicant did not respond in a way that corrected the respondents’ understanding there said.

33    The primary judge considered that the whole of the correspondence was not sufficient to put the respondent on notice of the case that the applicant wished to present. In this regard the primary judge adverted to submissions made in an earlier strikeout application brought by the respondent in relation to the Racial Discrimination Act claims. Her Honour relevantly said:

In paragraph 14 of that submission, it was said that the applicants intended to establish their case in respect of racial discrimination by calling evidence from those who saw and lived in housing for which the CEO is a landlord in major centres and remote communities, for both Aboriginal and government employee tenants.

I have had regard to that submission. However, it is one of a number of pieces of material that I have considered and, on the whole, I do not consider that evidence that the case that the applicant wishes to bring and try in the dates set down in October that that paragraph was sufficient to put the respondent on notice.

34    It is apparent that the primary judge was substantively concerned with the provision to the respondent of adequate notice of the claim that it had to meet and that merely being informed of the applicants’ intention to call lay evidence which extended beyond what the respondent had previously understood the initial trial to consider, was not sufficient.

35    The primary judge concluded that if the draft amended Statement of Claim were allowed to proceed, it would give rise to a breach of procedural fairness to the respondent because the case was inadequately pleaded and is founded on facts and circumstances related to claimants other than the lead claimants’ properties and defects in their properties. Her Honour concluded that the trial date in October 2026 would be lost because of the need to allow the respondent more time to answer the case advanced if the draft amended Statement of Claim were to be accepted.

36    The primary judge considered the concern raised by the additional lay evidence contained in affidavits filed in respect of the Gunbalanya claimants, who gave evidence of building defects in their premises, as opposed to the premises of the two lead applicants. She found that particulars must be provided as to the use proposed to be made of those affidavits.

37    The primary judge concluded by inviting the parties to consider how the trial set to commence in October 2026 may be saved by limiting the scope of the hearing.

2.2    The March judgment

38    In her ex tempore March judgment, the primary judge notes that paragraphs 24 to 27 of the Statement of Claim allege breach of the three terms of residential tenancy agreements (or other agreements governing their relationship) including the Habitable Premises Term. Her Honour also acknowledged that paragraphs 29 to 31 of the Statement of Claim alleges the existence of a Repair Systems Term. That Repair Systems Term is relied upon by the applicants for the purposes of other causes of action, including the causes of action founded in unconscionable conduct under the ACL and breaches of the Racial Discrimination Act.

39    The primary judge observes that the affidavits filed by the lead applicants in accordance with timetabling orders represent the totality of the evidence relied upon in support of the causes of action. She then said:

I have found that it would constitute a breach of procedural fairness adverse to the respondent party to enable the – to now allow the applicants to run a case which included the trial of all of the lead applicants’ causes of action as well as adducing evidence within that claim of individual facts and circumstances of individual claimants, Aboriginal claimants.

And as I said in my reasons on 19 February, one, but not all – one of the reasons for supporting that finding was that the respondents had been – had expressly asked the question about whether or not evidence of that kind would be adduced and were expressly told in response to that question that it would not be. And I have accepted evidence put on by the respondents with respect to the consequences in having to answer factual allegations or put on opposing evidence with respect to the facts alleged by those witnesses … and I formed the view that it was not possible for the respondent, in fairness, to proceed to the trial with the initial scope of the trial so defined.

40    The primary judge acknowledged that the consequence of limiting the issues for determination at the first trial is not the preferable course but that, in addition to the matters mentioned above, she was also not satisfied that the trial of all issues could in any event be ready because of the evidence adduced by the applicants to the effect that there is delay in putting on their expert evidence. She considered that an advantage in limiting the scope of the trial is that the problem caused by the late filing of expert evidence would be resolved in part by severing parts of the case to which it referred and in part by reducing the burden of issues to which the late expert evidence applied.

41    The primary judge concluded that it was appropriate to confine the initial trial to the determination of the lead applicants’ claims in Parts A to D and Part H (where relevant) of the Statement of Claim and any set off or counterclaim other than those relevant to the other parts of the Statement of Claim. The primary judge left it open to the applicants to apply to vary the orders made including by introducing evidence of further Aboriginal witnesses if it would be fair to the respondent to do so and to otherwise manage the proceedings as required.

42    Turning to the question of the vacation of the hearing date, the primary judge indicated that she was not presently satisfied that this was a preferable course but allowed the applicants time within which to bring such an application.

2.3    The April judgment

43    In the April judgment the primary judge recounted, without purporting to alter the meaning of, the February judgment and March judgment ([18]). Her Honour also provided a summary of the pleadings.

44    In relation to the lay evidence, her Honour noted that uncertainty had arisen on the part of the respondent as to the purpose of the evidence of the Aboriginal witnesses who were not the lead applicants (being the Gunbalanya claimants) because such evidence was of a kind that might be adduced in support of idiosyncratic claims brought in their capacities as group members ([45]). It appeared that the applicants would seek factual findings to the effect asserted in the Gunbalanya claimants’ evidence relating to their individual facts and circumstances, in a situation where no particulars of any individual group member existed in the pleadings and that previous attempts to understand the evidentiary nature of the matter had not included this manner of evidence.

45    Her Honour then summarised her conclusions on 19 February 2026 and 3 March 2026 by saying that a number of case management considerations weighed in favour of an order reducing the scope of the initial trial ([59]). Her Honour noted that in the course of argument on 3 March 2026, the applicants opposed the order being made and submitted that an alternative approach would be to vacate the trial dates altogether with a view to commencing a trial in 2027 ([61]). The primary judge had declined to defer the resolution of that issue but granted liberty to the parties to apply to vary or revoke the 3 March Orders, which they then did by way of interlocutory application that was the subject of the judgment.

46    The primary judge then considered and rejected the adjournment application, taking into account the effects of the 3 March Orders (limiting the scope of the trial) on the:

(a)    fragmentation of the trial timetable and structure;

(b)    delay in the conduct of the trial;

(c)    prospects of settlement arising from the fragmentation;

(d)    costs and expense (insofar as the proceedings have been long running and expensive as to the interlocutory processes relating to discovery, opt out notices and delineating the scope of the trial);

(e)    lay evidence filed by the applicants and procedural fairness to the respondent;

(f)    exclusion of evidence productive of procedural unfairness;

(g)    overlapping evidence going to different aspects of the claims;

(h)    exclusion of parts of the claim on the grounds that the lead applicants need more time;

(i)    institutional impacts on the Court and its resources;

(j)    effect of changed circumstances since 3 March 2026 as to the pleading; and

(k)    other matters raised.

47    In argument in the present application, the parties particularly drew attention to paragraphs within the section of the judgment concerning the lay evidence and procedural fairness:

117    The introduction of “idiosyncratic facts” relating to the Gunbalanya deponents’ homes was, as at 3 March 2026, the applicants’ forensic choice.

118    The allegation that no procedural unfairness arose from that choice is to be determined on the facts, circumstances and pleadings as they existed at 3 March 2026 not on the basis of the latest iteration of a proposed amended pleading or a later forensic choice.

119    Importantly, the evidence of the Gunbalanya deponents was filed in circumstances where CEOH had made it known that the presentation of a case in a granular fashion would have significant implications for CEOH’s own forensic decisions and trial preparations. I accept that there have been other occasions when the lead applicants had referred to an intention to call lay witnesses, but that is not enough to retract the very clear assurance given in the 2024 Correspondence. Unequivocal notice was required to be given on an intention to seek granular findings at the level of a particular dwelling not only because of the 2024 Correspondence but because of the nature and volume of evidence potentially relevant to each dwelling and also because the sheer number of dwellings renders it impossible for CEOH to guess which dwellings the lead applicants might invite the Court to make specific findings about. The potential difficulties that might occur by the failure to give notice of such claims to my mind are obvious. Furthermore, it is unacceptable that the lead applicants were unwilling or unable to give clear responses to the queries made by CEOH about the uses to which the evidence was to be put by reference to the pleading in the weeks and months after it was filed. The Court itself found the process of securing clear answers to that question excruciatingly difficult, made all the more difficult by the acknowledged problems with the pleading containing clear linkages between paragraphs that (as it turns out) were not intended to be there.

120    The Court acted on evidence concerning the nature and extent of the impact of that lay evidence on the CEOH’s ability to fairly prepare for the trial. That impact is described in an affidavit of Ms Lecia Wood sworn on 16 February 2026. Ms Wood there described the scale of the work undertaken in dealing with the pleaded claims of the lead applicants’ premises. Approaching the numbers conservatively, more than 10,000 documents have been discovered as bearing on questions relating to the state of their houses alone. Ms Wood then referred to the nine additional lots mentioned in the affidavits of the Gunbalanya deponents. They deposed to an average of 20 defects in relation to each of those nine lots. Counsel for CEOH expressed concern about the ability to review the large volume of documents relevant to proving or disproving the defects. The burdens fell to be considered in addition to the then existing burden of preparing for the trial on the Unconscionable Conduct and RDA Claims with all of the complications then besetting them.

48    The primary judge concluded that the 3 March Orders should be narrowed in the manner to which I have referred above, but otherwise dismissed the application, including the application to vacate the hearing.

3.    CONSIDERATION

49    For the following reasons, I consider that leave to appeal from the 3 March Orders and the 26 March Orders must be refused.

50    The basis advanced for proposed ground 1 is that the primary judge erred as a matter of fact because the respondent did have adequate notice that the applicants would seek to establish their pleaded case about the condition of houses other than those of the applicants. It also contends that the respondent did have a reasonable opportunity to meet such facts as disclosed by the lay evidence, in the time frame for the trial to commence in October 2026 (proposed ground 1(b)). Consequently, there was no issue in respect of procedural fairness (proposed ground 1(c)).

51    The basis for the error of the primary judge was said by the applicants in oral submissions to be a misapprehension of the facts going to the notice to the respondent of the case to be advanced. In short, the argument put is that:

(1)    By letter of 16 July 2024 the applicant notified the respondent that the applicants’ Racial Discrimination Act claims would be advanced by proving racial discrimination through systemic differences as to conditions of housing, response times and practices followed by the respondent and not on the basis of a “transaction-level” proof of complaints and condition reports. Those claims were to be proven through systems-level or management level documents prepared by or for the respondent, the relevant Department responsible for the administration of the Housing Act or the Northern Territory Government, and documents recording policies, systems, operating instructions, procedures, protocols, guidelines and the like.

(2)    That position was corrected in written submissions filed in August 2024 on an application for summary judgment or to strike out the Racial Discrimination Act claim (being the strikeout application), where the applicants said at [14] that they intended to establish their case by calling evidence “from those who saw and lived in housing for which the respondent was a landlord in Major Centres and Remote Communities, for both Aboriginal and government employee tenants”.

(3)     The respondent acknowledged that correction in its submissions in reply saying:

… The applicants have clarified that the direct evidence they intend to adduce will be illustrative rather than comprehensive and that they do not intend to adduce evidence about all premises or a statistically significant proportion…

(4)    The respondent further acknowledged this on 3 July 2025 (when the matter was set down for hearing) during argument when senior counsel observed that the applicant wished to call lay evidence from people who lived in various of the communities including the lead applicants, for their observations on the quality of the housing, interactions they had with government department officers and so on.

(5)    Accordingly, the primary judge erred when she found in the February judgment that the “whole of the correspondence was not sufficient to put the respondent on notice the case that the applicant does indeed wish to present” and in the April judgment at [119].

52    In my respectful view this argument does not do justice to the reasoning of the primary judge in the February judgment or in the April judgment.

53    It is apparent from reading the February judgment that her Honour did not confine her consideration to whether there was a general awareness that the applicants intended to adduce evidence from witnesses beyond the lead applicants, but was concerned, more fundamentally with whether the respondents were put in a position to understand the case that they had to meet.

54    As much is apparent from the primary judge’s detailed consideration in the February judgment of the case pleaded in the Statement of Claim, and her observation that the pleading gives no particulars of breach of the contractual terms other than with respect to the lead applicants and that the repeated statement in the Statement of Claim to the effect that particulars relating to individual Group Members “may be provided following trial of common questions or otherwise as the court may direct”. Contrary to the submission advanced by the applicant, the primary judge’s February judgment and March judgment was not narrowly concerned with whether the applicants had made the respondent aware in a general sense that evidence of the type contained in the Gunbalanya claimants affidavits would be led, but rather whether that was accompanied by particulars that enabled the respondent to understand the case that had to be met.

55    This is particularly apparent from the acknowledgement by the primary judge that she had regard to the statements made in the strike out application in August 2024 in the February judgment, which were to the general effect that evidence beyond that of the lead applicants would be relied upon, but on the whole that notice set out briefly in submissions in respect of that application (in [14] of the submissions) was not sufficient to put the respondent on notice of the claim to be met.

56    In this regard, the passage relied upon by the applicants in the April judgment at [119] does not advance the position of the applicants further. They sought to characterise the error as lying in the statement that “unequivocal notice was required”, but the unequivocal notice was not simply of an intention to rely on further evidence, but notice of the claim that the respondent had to meet. This is also apparent from the balance of [119] which speaks to the difficulty of meeting the case without such notice, and the unacceptable lack of clarity from responses to queries from the respondent. Furthermore, the primary judge had regard to the evidence of Ms Wood (a solicitor for the respondent), which pointed to the practical problems of addressing the evidence of the Gunbalanya claimants: see April judgment at [120].

57    The logical difficulty with the applicants’ submission in this regard is demonstrated by the fact that the evidence of the Gunbalanya claimants was substantially served in October 2025. The primary judge was not simply concerned with the fact of an intention to rely upon that evidence, but with ensuring that the respondents had an understanding of how it was to be used in the context of the case and whether sufficient time was available to answer it.

58    Accordingly, in my view ground 1 does not have reasonable prospects of success.

59    Proposed grounds 2 and 3 challenge the decision of the primary judge to order the determination of some issues separately and before other issues, as set out in the 3 March Orders, and that further or in the alternative, the primary judge erred by failing to give weight to the objects and principles of the FCA Act.

60    In proposed ground 2, the applicants raise three matters. First, that the primary judge erred in the decision to make the 3 March Orders on the basis that it would be procedurally unfair to permit the matter to proceed to hearing in October 2026, when the hearing date could instead be vacated or varied without splitting the initial trial. This aspect of the ground so expressed is incompetent by virtue of the explicit prohibition of appeals in respect of decisions made under s 24(1AA)(b) of the FCA Act, to which the 3 March Orders applies. Furthermore, for the reasons set out in relation to ground 1, in my respectful view, no reasonably arguable case has been established for the proposition that the primary judge erred in her finding of procedural unfairness.

61    The second matter is that the applicants contend there is a desirability to retain the existing dates for a single trial for the hearing of the entire proceedings and that the outcome of the 3 March Orders will be a less efficient use of judicial orders. The third matter is that the primary judge erred in considering that the 3 March Orders were justified in circumstances where the lead applicants would previously be required to adduce evidence only once, in the first stage of the hearing in relation to all issues and other factors, which would ordinarily indicate against splitting a trial of the applicants’ claims.

62    In submissions, the applicants contend that the 3 March Orders do not serve the purposes of Part IVA of the FCA Act.

63    The primary judge considered in detail the matters in favour and against making an order for separating the issues in the trial, hearing full argument from the parties. The detailed considerations that her Honour took into account are traversed in the April judgment. The matter was one of case management that the primary judge was in a position to assess and did so in detail. In that regard, the primary judge considered closely the effect of the bifurcation of issues and the consequences that this would have on the ability of the parties to litigate their claims at [83]–[88] (“Fragmentation”) and the fact that that absent the approach adopted, there would be a delay of indeterminate time when contrasted with the value of moving the matter forward [89]–[99] (“Delay”). Amongst other considerations that the primary judge weighed were the question of potentially overlapping evidence (at [126]–[132]). The primary judge had the advantage of case management of the proceedings and so was acutely aware of the procedural requirements necessary to enable the parties to fairly litigate their claims. I do not consider that the applicants have demonstrated a reasonable likelihood of error on the part of the primary judge in the exercise of her discretion.

64    In proposed ground 3 the applicants contend that the primary judge erred in failure to give proper weight to the objects of Part IVA of the FCA Act, s 37M of the FCA Act and the principles concerning the appropriateness of splitting a trial (with reference to s 37P of the FCA Act or r 30.01 of the Federal Court Rules 2011 (Cth)). This ground amounts to little more than expressing disagreement with the outcome of the exercise of the primary judge’s discretion.

65    The primary judge took into account the objectives of Part IVA at [64]–[74] of the April judgment and rejected the applicants’ submissions that the 3 March Orders did not conform with them, recognising that whilst not all of the common issues would be addressed in the first hearing, many of them would be: April judgment [87]. The primary judge also recognised that not dealing with all of the common issues was a negative (noting the implications this may have on the prospects of settlement, arising from an initial judgment as only to certain issues), but that there were countervailing factors that weighed in favour of the course taken: April judgment [101]. The primary judge also took into account the requirements of s 37M, evaluated the arguments raised by the applicants and reached the conclusion that the overarching purpose was satisfied by the making of the orders: April judgment [164]. The applicants have not demonstrated arguable error of fact or law to warrant revisiting that approach or its outcome.

66    In proposed ground 4 the applicants contend that the 3 March Orders are unreasonable or plainly unjust or are otherwise such that the primary judge’s exercise of discretion would be reviewed on the ground that a substantial wrong has occurred. To the extent that additional arguments are made beyond those addressed above the applicants contend that the orders would prejudice them because: first the applicants will be required to conduct the initial trial without their own evidence on the remainer of Parts E, F G and I; secondly the applicants will be required to conduct the trial without notice of the Respondent’s case about those parts of the case; and, thirdly because the applicants will have no opportunity to challenge or use such evidence led by the respondent against them. Finally, they submit that the orders with respect to the Initial trial considering the particular facts and circumstances alleged in connection with the lead applicants, identifies issues of fact by reference to particulars not allegations of material fact.

67    The respondent submits that no alternative timeframe was postulated by the applicants (as to their prolongment of the proceedings argument), that the decision preserves (and does not disrupt) the hearing dates originally fixed in the Court’s calendar (which also gives effect to case management objectives, that prejudice would not arise as the scope of the initial trial would not extend to the final determination of issues on which the parties’ evidence is incomplete, and finally, that the identification of issues by the primary judge was done by reference to allegations of material fact insofar as they were properly particularised.

68    I consider that should the pleadings and evidence not adequately elucidate the issues between the parties, then that is a matter that can be raised with the primary judge. It may be noted that at this point the primary judge continues to manage the proceedings and matters warranting further adjustment can be addressed, to the extent necessary, by further case management.

69    I am not satisfied that ground 4 raises an arguable ground of appeal.

70    I now turn to consider whether a substantial injustice will arise in the event that leave to appeal is not granted. In this regard, I note that the orders of the primary judge do not preclude the applicants from advancing any aspect of their claims and that issues not addressed at the initial trial may be determined at a further trial. The applicants are not precluded from raising further interlocutory matters concerning the conduct of the trial. No substantial injustice has been established.

4.    DISPOSITION

71    For the reasons set out above, I will grant the applicants’ application for leave to extend the time in which to appeal from the 3 March Orders, but otherwise I refuse the application for leave to appeal from the 3 March Orders and 26 March Orders. The applicants must pay the respondent the costs of their application. Although the respondents seek indemnity costs, I am not satisfied that such an order is warranted.

72    Given the urgency of the application for leave to appeal, I informed the parties at the hearing that I would notify them of the outcome of the application shortly after the hearing, with reasons to follow. Soon after, I was informed of the unfortunate death of one of the lead applicants, Mr Dann. This does not preclude the delivery of judgment (see Federal Court Rules r 30.24) but causes complications in relation to the making of orders. That day, the parties were informed in correspondence that the application for leave to appeal would be dismissed and that orders would be made to that effect with an accompanying judgment when the Court is advised of any changes to the party names. The parties jointly proposed that before final orders are made, Mr Dann’s legal personal representative(s) should be substituted for the first applicant in the application. They ask that after reasons are delivered, final orders are not made until the estate of Mr Dann is established and substituted as the first applicant. I accept that this is the appropriate course. The only order that I will make is to stand the proceedings (in the application for leave to appeal) over to the Registrar for the making of substitution orders and for the making of final orders dismissing of the application. This was the course adopted in Giumelli v Giumelli [1999] HCA 10; 196 CLR 101 at [60]–[61] (Gleeson CJ, McHugh, Gummow and Callinan JJ, Kirby J agreeing at [65]).

Associate:

Dated:    2 July 2026