Federal Court of Australia

Phillips in his Capacity as the Personal Representative of the Estate of Dann v Chief Executive Officer (Housing) (Northern Territory) (No 2) [2026] FCA 1346

ORDERS

THE COURT ORDERS THAT:

1.    The respondent has leave to amend the particulars to [30] of its Defence in the terms proposed by the respondent, save for proposed particulars 7(d)(ii) and (e)(iv).

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    Some of the earlier background to this class action and the issues arising on the pleadings can be found in Dann v Chief Executive Officer (Housing) (Northern Territory) [2026] FCA 442 (Dann No 1). These reasons are to be understood against that general background.

2    The Initial Trial is due to commence in a little under four weeks from now.

3    The respondent has applied for leave to amend the particulars to [30] of its Defence. The occasion for the proposed amendments arose in circumstances where the Court overruled the applicants’ objections to the admission of certain of the respondent’s affidavit evidence in advance of the trial. That ruling was made in circumstances where the respondent had sought a pre-trial ruling to exclude certain parts of the applicants’ affidavits. The applicants’ response to that application was to assert (among other things) that the challenged evidence was evidence in reply to certain parts of the respondent’s affidavits. Their primary submission was that the respondent’s material should be ruled inadmissible because it went beyond the pleaded issues. They submitted that if the respondent’s evidence was excluded, then there would be no occasion to adduce their reply evidence. The applicants further submitted that it was necessary to rule on the admissibility of that part of the respondent’s evidence prior to the trial because a ruling on that topic would significantly influence the number of witnesses to be called to give evidence in reply, specifically at a remote sitting scheduled to take place in Gunbalanya in the Northern Territory.

4    The respondent’s application to have pre-trial rulings (and the applicants’ responsive applications) were case managed and heard over several weeks in conjunction with other procedural issues arising in advance of the trial. In the result, I ruled that the respondent’s evidence should not be excluded because it was relevant to the respondent’s denial of the applicants’ allegations concerning breach of the Systems Term pleaded at [29] to [33] of the then fifth statement of claim (SOC). I accepted the respondent’s submissions that the evidence was relevant to its claim that delays in the repair and maintenance of the trial applicants’ homes were not the result of any failure to have or implement an adequate repair system.

5    When overruling the applicants’ objection to that material, I required that the respondent give further particulars to [30] of the Defence so as to record in the pleadings the alleged facts to which the challenged evidence related. I considered that to be appropriate because, in the course of argument, the respondent had confirmed that the evidence was directed to defending the systems case. In the course of giving oral reasons for that ruling, I observed that the applicants had prepared and filed affidavit evidence in response. On the material then before me, I concluded that the challenged evidence of the respondent did not give rise to procedural unfairness affecting the preparation of the applicants’ case in reply.

6    In respect of the proposed particulars, the Court had the following exchange with the respondent’s counsel:

HER HONOUR:    … In terms of the time for the particulars to the defence, I wish to press you to do that in a short space of time, Ms Liu.

COUNSEL:     Yes, your Honour. We can attend to that by 19 August, if that’s suitable to the …

HER HONOUR:     Yes, and may I emphasise that it is – this is a limited grant. It is in order to facilitate – to match the evidence that has been filed, not to enlarge the scope beyond the factual contextual matters that have been raised in the respondent’s materials.

COUNSEL:         Yes, your Honour.

HER HONOUR:     In which case, it should be the subject of an exchange rather than a wider grant of leave …

7    The respondent has now proposed its particulars, many of which are not controversial. I have earlier indicated that the respondent will have leave to introduce those particulars that are not opposed, namely particulars 1, 2, 3, 4, 5, 6, and 7(a), (b), (c)(iii)(A), (c)(iv) and (d)(i).

8    I have deferred consideration of the proposed particulars 7(d)(ii) and (e)(iv) as there was some prospect that any remnant disagreement about those pleas would be resolved.

9    These reasons relate to the amendments proposed to particulars 7(c)(i), (ii), (iii)(B) and (e)(i)-(iii). It is convenient to set out the whole of proposed particular 7 so that the contentious pleas can be considered in that context. The disputed portions are in bold:

7.    As to the additional matters impacting achievement of [Priority Defect Response Times] in Gunbalanya:

a.    There was a shortage of appropriately skilled and qualified staff and contractors that were:

i.    locally available in Gunbalanya; and

ii.     located in urban or regional centres, who were prepared to relocate to Gunbalanya, or visit Gunbalanya on a regular basis or on short notice.

b.     There were challenges associated with recruiting and retaining appropriately skilled and qualified staff and contractors, due to:

i.    as to those locally available in Gunbalanya, a lack of individuals with the appropriate qualifications or skills, and who were available to consistently attend work; and

ii.     as to those based in urban or regional centres, the requirements for relocation and/or regular travel to Gunbalanya.

c.     The public housing system in Gunbalanya experienced a high volume of requests for repairs and maintenance due to:

i.     The failure by some tenants to comply with their obligations to reasonably care for their rental property, or to comply with the requirements pleaded at [126(a)], [126(b)] and [126(c)] of the Defence.

ii.     Damage to Housing caused by other persons.

iii.     As to pest infestation issues:

A.     the geographic and environmental conditions and location of Gunbalanya on a floodplain in the West Arnhem region, and

B.     the failure by tenants to keep the Housing in a reasonably clean condition and, in that regard, paragraph (i) of the particulars to [126(a)] is repeated.

iv.     Overcrowding contributing to higher rates of wear and tear in the Housing.

d.     Staff and contractors were sometimes unable to access Gunbalanya due to:

i.     the wet season;

ii.     in the period between 2020 to 2022, the COVID-19 pandemic.

e.     Staff and contractors were unable to access Housing in Gunbalanya as pleaded at [21(c)], [24(c)] and [27(c)] of the Defence due to:

i.     refusal by tenants or occupants to permit entry into Housing or parts of Housing;

ii.     absence of tenants or occupants to permit entry into Housing or parts of Housing;

iii.     safety concerns due to the antisocial behaviour of tenants or members of the community, or unrestrained animals; or

iv.     in the period between 2020 to 2022, the COVID-19 pandemic.

10    The applicants opposed the emphasised portions for several reasons.

11    They contended that the amendments substantially add to the issues to be tried and that they are provided for the first time shortly before the Initial Trial is due to commence. They contended that the allegations are too broadly cast in that they make allegations concerning unspecified tenants and unspecified times over a 17-year time period. They further submitted that the particulars do not allege any conduct against the trial applicants or any other tenant witnesses. They submitted that if the allegations were about any of those people, then there is now an insufficient opportunity to obtain instructions and to obtain evidence in respect of them. It was further submitted that if the allegations were not about the trial applicants, it is unclear how they could advance the Initial Trial. The applicants submitted that the proposed amendments go beyond the factual matters raised in the respondent’s evidence earlier considered by the Court and that to allow the amendments in such close proximity to the Initial Trial would give rise to procedural unfairness.

12    The applicants also submitted that to allow the amendments would be to adopt a disparity in approach as between the parties. They referred to the history of the proceeding and specifically an occasion when they had sought to rely on primary lay evidence about specific defects in specific houses (other than the houses in which the trial applicants had lived). They alleged that on that occasion the respondent had sought, and the Court had ordered, that the Initial Trial be narrowly confined so as to exclude the applicants’ systems case because allegations about tenants or lots that were not particularised would give rise to procedural unfairness.

13    The latter submission contains an incomplete and inaccurate summary of the relevant history of this proceeding, the orders the Court has previously made and the reasons given for making them. The history and orders are as recorded in Dann (No 1). The reasons speak for themselves and are to be understood in full.

14    It is correct to say that the scope of the Initial Trial was reduced to ensure that the respondent was not disadvantaged by the introduction of the evidence of some Gunbalanya deponents. In that regard, the Court acted on evidence from the respondent explaining the extent and nature of the work that would need to be undertaken in order for the respondent to be ready for a trial that incorporated a defence to their testimony as well as all other issues. In Dann (No 1) I explained how the issues of procedural unfairness arose on that occasion and how they were resolved. I accepted the respondent’s sworn evidence as to its reliance on past correspondence and on the scope of its work at that time. The evidence of the Gunbalanya deponents was not excluded. The facts and circumstances of that procedural history are not the same as those that now arise. The applicants’ assertion that the Court is adopting a “two-speed process” is rejected.

15    Whether or not the introduction of the respondent’s proposed amendments gives rise to procedural unfairness to the disadvantage of the applicants is to be assessed not by a comparison against orders the Court has previously made, but rather on the basis of the facts and circumstances as they now exist, assessed on the evidence now before me.

16    As expressed in the applicants’ written submissions, the asserted disadvantage is as follows:

… these new allegations, proposed within weeks of trial, would give rise to unfairness, and should not be allowed. The Applicants made significant efforts to engage with witnesses on issues going beyond those now within the scope of the Initial Trial, and this was disallowed. Those same witnesses could have been asked to give evidence about the allegations the Respondent now seeks to make, and had those been made early and particularised, then particular evidence could have been taken from those said to have engaged in the relevant behaviours. For example, such witnesses could directly have addressed whether they were in the habit of refusing, or had ever refused, entry to staff or contractors, had no one present at their home in business hours, kept their house in an untidy manner or engaged in ‘antisocial behaviour’ (whatever that is intended to mean).

17    As to the facts and circumstances of the trial applicants themselves, the disputed amendments cross-refer to other parts of the Defence. In that respect they incorporate pleas that already form a part of the Initial Trial. In particular, [126] is contained in that part of the Defence where the respondent asserts a right of set-off for tenant damage in breach of obligations referred to as the “Tenant Damage Term” and the “Tenant Alteration Term”. There are express allegations of breach of those terms in respect of Lots 330, 355, 455 and 761. The allegations of breach are in turn cross-referenced to existing pleas in [21], [24] and [27]. Accordingly, the facts and circumstances particularised in connection with the trial applicants’ homes referred to in those pleas already form the subject matter of the Initial Trial. To the extent that they are now repeated or incorporated in the proposed particulars to [30] of the Defence, the underlying factual allegations are not new.

18    The amendments are to be understood as incorporating that subject matter into the respondent’s defence to the applicants’ allegation that it breached the alleged “Repair Systems term” as asserted at [33] of the SOC. The particulars to that extent put the applicants on notice that some of the specific facts and circumstances relied upon in support of the set-off claim may also be relied upon in the defence to the systems case insofar as they are cross-referenced. The “some tenants” referred to in proposed particular 7(c)(i) incorporate those against whom the set-offs are particularised. In the course of argument on the rulings application the respondent made it clear, for example, that the state of cleanliness of the second applicant’s home contributing to pest infestation would indeed be relied upon as an instance of the difficulties allegedly faced by the respondent in addressing the pest infestations in Gunbalanya more generally. All of that has been canvassed at earlier hearings and cannot now be the subject of query or complaint.

19    Some other aspects of the pleading should be noted for their context.

20    The applicants rely on the delays affecting the trial applicants’ homes in support of their allegation of a causal connection between the delay and the alleged inadequate system, including cross references to [21], [24] and [27] of the SOC in their systems-based claim. The facts pleaded at [30] of the SOC are cross-referenced in cascading fashion in [31] to [33]. The particulars to [30] of the Defence are to be understood as forming a part of the respondent’s response those pleas. The structure of the applicants’ claim is to allege a systemic practice which is then said to have manifested itself in the trial applicants’ homes.

21    The alleged causal connection is denied by the respondent by its own pleas at [30] to [33] of the Defence. The respondent’s case is that, to the extent that there were delays in attending to repairs, they were not caused by the alleged failure to have or implement an adequate system of repair. They plead alternative explanations for any proven delay. In that respect they erect a system-wide defence to a system-wide claim.

22    The reasons for the repair delays previously alleged at [30] of the Defence were confined to matters concerning the availability of commercially operating tradespeople with skills and components increasing travel times: [30(f)]. The reasons did not incorporate the additional matters raised in the respondent’s affidavits. The applicants objected to significant parts of that evidence and it was those objections that consumed time and resources in the weeks leading up to this juncture.

23    An issue now raised by the applicants is that the particulars go beyond the respondent’s evidentiary case, bearing in mind that the Court has ordered that the new particulars should do no more than to reflect the evidence upon which the respondent proposes to rely.

24    The limit on the grant of leave was confined in that way following the delivery of reasons in which I held that the applicants had been in possession of the respondent’s affidavit evidence for some months. I concluded that reply evidence had in fact been prepared in respect of it. For all parties, the scope of the reply evidence assumed some importance because the rulings would influence the length of the trial and the witnesses to be called. Given that reply evidence had been prepared, I concluded that the applicants would not be prejudiced if the asserted additional reasons for delay were now particularised by the respondent.

25    It remains necessary to determine whether the particulars go beyond the evidentiary case and otherwise prejudice the applicants.

26    The correlation between the proposed particulars and the respondent’s affidavit evidence is demonstrated in a Schedule accompanying the respondent’s submissions. The Schedule identifies each allegation in the proposed particulars and cross-references it to the affidavit material to the level of the sentence. The evidentiary case relied upon by the respondent in support of the particularised allegations could not be made clearer than that.

27    To the extent that the evidence is expressed at a level of the respondent’s broader business operations, it is said to be supported by documents, also identified in the evidence by identification number. I have mentioned that the respondent raises a systems-level defence to a systems-level allegation. It is open to the respondent to present its case in that way. I have previously mentioned in oral reasons that, to the extent that the evidence itself is expressed in broad and generalised terms, that is a matter going to weight.

28    Together, the particulars and the Schedule confirm the respondent’s defence with sufficient particularity to enable it to be understood. I do not accept the submission that the particulars do not advance the Initial Trial. The Defence is responsive to the systemic nature of the case the respondent must meet. To the extent that particular tenancies are relied upon by the respondent as illustrative of the issues causative of delay, they are identified in the evidence, including to the level of document identification numbers. In that respect, the respondent has complied with the order that the particulars not go beyond their evidentiary case.

29    The applicants’ Counsel was invited to address the material contained in the Schedule in order to explain how the particulars were said to exceed what was contemplated by the Court’s orders, or to otherwise assist the Court to understand the nature of the asserted unfairness. Counsel did not do so. Counsel submitted that the applicants would be objecting to the evidence in due course on the basis that it went beyond the pleaded case and that the applicants were disadvantaged by its introduction. Counsel submitted that the applicants were under no obligation to disclose the further objections they would make to the respondent’s evidence until such time as they were required to provide the respondent with a schedule of objections in advance of the trial, and that scheduled date had not yet arrived.

30    Counsel otherwise submitted that the prejudice was demonstrated by “the absence of evidence”. As I understood the submission, it was that the absence of evidence responsive to parts of the respondent’s evidentiary case demonstrated, in and of itself, that the applicants were not able to respond to it. That accords with the written submission to the effect that the applicants (by their representatives) could and would have asked their witnesses (specifically other Gunbalanya residents) to put on evidence in reply, had the particulars been included in the Defence at an earlier time. At such close proximity to the trial, it is now not possible for that to be done, it was submitted. The applicants say they cannot respond to the evidence because it is so broad as to be incapable of any particular evidentiary response.

31    Three issues arise from this part of the applicants’ submissions.

32    The first is a question of efficient case management. Over about three months, the applicants have participated in processes by which the respondent sought to exclude some of the applicants’ material. They contested the respondent’s application in part because the challenged evidence was in the nature of evidence in reply. In addition, the applicants made an application to rely upon additional evidence-in-chief. In support of their position, the applicants put on affidavit material disclosing at some length their activities in obtaining the additional evidence-in-chief as well as reply evidence. No mention was made in that material as to any asserted inability to question prospective witnesses about the issues asserted in any other part of the respondent’s affidavits. All in all, the applicants are calling 22 Aboriginal witnesses, several of whom have deposed to matters in reply (at varying degrees of specificity) responsive to the evidence mentioned in the Schedule.

33    When asked what the additional objections to the respondent’s affidavits would be, the applicants’ Counsel informed the Court that no final decision had been made in that respect.

34    If the objections have not yet been identified by the applicants themselves, it is difficult to understand how the written submission concerning prejudice (extracted above) can be advanced. I am not persuaded that the prejudice asserted in opposition to the introduction of the particulars is any different from the opposition put forward in support of the application to have the underpinning evidence ruled inadmissible. I have already heard and determined the question of the asserted prejudice on the basis of the material the applicants then put forward. They should not now be permitted to reagitate the same issue by opposing the supplied particulars.

35    In the circumstances described I have considered whether to defer further consideration of the application to amend the particulars to a later time. I am not satisfied that I should do so. The trial is approaching and the particulars serve to define the scope of the issues to be tried.

36    In summary, I have earlier permitted (indeed required) the respondent to put on particulars reflecting the evidence upon which it relies insofar as the evidence is to be relied upon in support of the plea at [30] of the Defence, as that was the stated purpose to which the evidence was to be put. That is what the respondent has done. The particulars relate to the factual issues the Court previously heard submissions about in the course of determining the various rulings sought by the parties. In the absence of submissions as to which parts of the evidence were not canvassed at the earlier hearings by reference to the Schedule or the affidavits themselves, I am not satisfied that the particulars go beyond what was permitted by my order requiring the proposed particulars to be provided.

37    Whilst I accept that the date by which objections were to be exchanged has not yet arrived, that date is the latest date by which that obligation is to be discharged. It does not constitute an invitation to any party to delay disclosing an objection at an earlier time insofar as the resolution of the issue is necessary for the efficient case management of the proceeding.

38    In any event, on the material presently before me, I am not satisfied that the applicants have not had a reasonable opportunity to prepare evidence in response to the respondent’s evidentiary case, specifically those portions to which the proposed particulars relate. Any “absence of evidence” responsive to the particularised facts is not sufficient to demonstrate that it could not be gathered or prepared. On that topic, it is relevant that following their receipt of the respondent’s affidavits, the applicants did in fact obtain affidavits from a number of additional residents of Gunbalanya, both in the nature of evidence in reply and in the nature of additional evidence-in-chief. The characterisation and admission of that material was the subject of considerable argument, followed by my consideration of the issues and the delivery of a ruling with lengthy oral reasons. As I have mentioned, at the date of the most recent hearing, the applicants did not articulate which additional parts were objectionable. It is difficult to see how they can demonstrate unfairness without supplying at least that information.

39    Accordingly, leave will be granted to amend the particulars to [30] of the Defence as proposed by the respondent, save for those particulars that are the subject of their ongoing discussions. To the extent that the particulars are general or broad on their face, the Schedule of evidence annexed to the respondent’s written submissions may serve as additional particulars of the asserted facts, where further detail is required.

Associate:

Dated:    15 September 2026