é Neagcrat UU ro ! ae ~~ Action against statutory authority - Northern Territory Housing? Commission - practice and procedure - striking out statement of claim - requirement of notice and . limitation period - claim for damages for personal injuries by tenant - whether claim for things done or omitted to be done under Act - failure to exercise statutory power not omission under Act Housing Act 1959 ss. 12, 12A, 26, 31, 35 Tenancy Act s.55 Rules of the Supreme Court of the Northern Territory 0.23 r.15 ~ 029, r.4. COLIN PETER DAVIS v. NORTHERN TERRITORY HOUSING COMMISSION No. NTG 37 of 1983 TOOHEY, McGREGOR & FITZGERALD JJ. DARWIN 6 APRIL 1984 IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY OF ) ) ) No. NTG 37 of 1983 AUSTRALIA ) ) ) DISTRICT REGISTRY GENERAL DIVISION ON APPEAL from the Supreme Court of the Northern Territory of Australia BETWEEN COLIN PETER DAVIS Appellant and NORTHERN TERRITORY HOUSING COMMISSION Respondent Oo R D_E R JUDGES MAKING ORDER : Toohey, McGregor & Fitzgerald JJ. DATE OF ORDER . 6 April 1984 WHERE MADE : Darwin THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The judgment of the Supreme Court of the Northern Territory of Australia dated 28 October 1983 striking out the statement of claim and directing that judgment be entered for the respondent be set aside. 3. The respondent's chamber summons dated 23 September 1983 be dismissed. 4, The respondent pay the costs of the chamber summons in the Supreme Court of the Northern Territory of Australia and the costs of this appeal. IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY OF AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. NTG 37 of 1983 dd ON APPEAL from the Supreme Court of the Northern Territory of Australia BETWEEN COLIN PETER DAVIS . Appellant and NORTHERN TERRITORY HOUSING COMMISSION Respondent CORAM: Toohey, McGregor & Fitzgerald Jd. 6 April 1984 REASONS FOR JUDGMENT TOOHEY J. This is an appeal from a judgment of the Supreme Court of the Northern Territory ordering that the appellant's statement of claim be struck out and that judgment be entered for the respondent. The point at issue is a short one but not free from difficulty. The respondent is a statutory body established by the Housing Act 1959 ("the Act"). By reason of s.12 of the Act its functions are: 2. "(a) to provide and assist in the provision of residential accomnodation; and (b) to provide accommodation, residential, office, industrial or other, for the Commonwealth and the Territory public purposes". Section 12A of the Act gives the respondent power inter alia to: "(c) build on land, including land heid by a private person; (d) repair, alter, extend, renovate, equip, furnish or otherwise affect premises; Ce) let premises; (g) maintain, manage and control premises;" The appellant sued the respondent as a result of a fall sustained by him on or about 4 October 1980 when he was walking down steps on a stairway adjacent to the tenants' car park of the respondent's Kurringal Flats at Fannie Bay. The appellant was a tenant of those premises from the respondent under a written agreement. In his statement of claim the appellant pleaded a number of causes of action which may be summarised in this way. . 1. Breach of an implied covenant, arising from the tenancy agreement, to keep the common parts and facilities of the flats in good repair and in proper lighting (para. 3). Breach of a covenant, implied by reason of s.55 of the Tenancy Act, imposing on the respondent, as landlord of the Flats, an obligation to keep any common areas in a clean and safe condition (para. 9). There were further pleas based upon the respondent's occupation of the common areas of Kurringal Flats. It was alleged that the appellant "had a right to use such common areas"(para. 6) and, as a further or alternative plea, that he was "an invitee upon the land". It is not clear whether these allegations were said to constitute one or two eauses of action. After lodging an appearance, the respondent applied for an order that the writ and statement of claim be set aside or dismissed as failing to disclose a reasonable cause of action and that judgment be entered for the respondent. The basis of the application lay in s.35 of the Act which reads: "35. NOTICE OF ACTION (1) An action shall not be brought against the Commission or a member or servant or agent of the Commission for anything done or intended or omitted to be done for or on behalf of the Commission under this Act, until the expiration of one month after notice in writing has been served on the Commission or person to be sued, clearly stating the cause of action and the name and place of abode of the intended plaintiff and of his solicitor or agent. ee eee we eee aoe ae i _ ad (2) On the trial of such an action, the plaintiff shall not be permitted to go into evidence of any cause of action which was not stated in the notice so served. (3) Unless such notice is proved, the Court shall find for the defendant. (4) Such an action shall be commenced within the 12 months next succeeding the accruing of the cause of action, and not afterwards. (5) A person to whom such notice of action is given may tender amends - to the plaintiff or his solicitor or agent at any time within one month after service of the notice and, if the tender of*amends is not 'accepted,~~ may plead the tender." It was common ground that no notice had been served on the respondent pursuant to sub-s.35(1) and that action had not been commenced within 12 months of accrual of the cause of action. Nevertheless, the absence of a defence to the state- ment of claim has some unsatisfactory features in the present case. Order 29 Rule 4 of the Supreme Court Rules empowers a judge to strike out a statement of claim on the ground that it discloses no reasonable cause of action. The court is empowered, in such a case, to order the action to be dismissed and judgment entered accordingly. For the purpose of such an application the respondent must be taken to have admitted the allegations in the statement of claim including the duties said to have been imposed on it under the tenancy agreement, pursuant to the Tenancy Act and at common law. It was not for the appellant to anticipate a plea that the claim was statute barred by sub-s735(4) of the Act; nor did he do 862- That was a matter to be raised (if at all) by the respondent in its defence. See Order 23 Rule 15. It would then be open to the appellant to plead estoppel or some other answer to the limitation plea, if indeed any answer was available. .- The bringing of an application to strike out a Shee ag. - - ase oe H ree) DY ae We wen = - ' statement of claim'on a ground that arises only from a-~ "2 . defence to be filed is premature. On the other hand, Je yr Perks , i te em at t having regard to the language of sub-ss.35(2), (3)' and (4), ~ it was, I think, incumbent on the appellant to plead the t giving of notice; the absence of such a plea justified the bringing of the application on that ground. Counsel for both parties asked that the Court deal only with the point of substance. The fact remains that the Court must approach the question whether s.35 is available to the respondent on the basis that the allegations in the statement of claim are admitted. The argument of the appellant before the Supreme Court and before this Court was that his action against the respondent was not "for anything done or intended or omitted to be done for or on behalf of the Commission under this Act". The Supreme Court rejected that argument on the basis that the respondent was the creature of the Act: that it could only build flats under the Act; that in maintaining, managing and controlling flats it was exercising rights and powers given to it under the Act;and that the acts and omissions pleaded in the statement of claim were things done or omitted to be done under the Act. A reading of para. 8 of the statement of claim, where the respondent's breach of duty is particularised, shows that the case against the respondent was essentially one of things omitted to be done - failing to keep the stairway clean, causing or permitting it to be unsafe in that puddles of water accumulated, causing or permitting the steps to become smooth, shiny, slippery and chipped on the edges, failing, to ensure that water from the laundry above did not run down the steps to form puddles, failing to provide handrails, failing to provide adequate Lighting over the steps. The veferences to "causing" do have positive overtones. For the purposes of the application before the Supreme Court and before this court, the question is whether the matters particularised were things done or omitted to be done for or on behalf of the respondent under the Act. The appellant advanced several arguments in support of his case that sub-s.35(1) had no application to his claim. 1. He had sued the respondent forlacts or omissions by it, not for or on behalf of it. 2. He had not sued for any thing done or omitted to be done under the Act. The Act conferred powers on the respondent; it did not impose duties. 3. He had sued for things done or omitted to be done in breach of a duty arising from the common law or from the Tenancy Act, not from the Act. 4, The matter could be tested by asking whether the appellant had sued for a failure on the part of the respondent to perform a duty owed to the public or one owed to the appellant as a tenant of a flat. If, as the appellant contended, it was the latter he could not be said to have sued for something done or omitted to be done under the Act, Counsel for the appellant submitted that something done or omitted to be done by the respondent was not done or omitted to be done for or on its behalf. The words "for or on behalf of" are capable of a variety of meanings, depending on the context in which they are used. And in some cases, particularly in matters of agency, it is clear that something dene for or on behalf of a person is not something done by him. But the expression "for or on behalf of" in s.35 was probably chosen in recognition of the nature of the respondent as a statutory body which could only act through its officers, employees and agents. This is a view of corporate responsibility which needs revision in the light of Tesco Supermarkets Ltd. v. Nattrass (1972) A.C. 153 Csee the discussion in Trade Practices Commission v. Tubemakers of Australia Ltd. (1983) Practices vommoe u7 ALR 719 at 737-740). The appellant relied strongly on the judgment of Sugarman A.C.J. in Peisley v. Ashfield Municipal Council (1971) 23 L.G.R.A. 166 at p.169: "In all this there was nothing Tomitted to be done under this Act'. A reference to things ' omitted to be done in a limitation section ... is inserted only, in order to bring within the ambit of the section a fatlure to perform a duty imposed by the Act which contains it". Asprey J.A. approached the matter by reference to the person to whom the duty was owed: "The case is not one in which a wrong was done to a private person by the omission on the part of an authority to perform some act which it either ought to do or may do in the course of discharging a duty owed to all the public alike or exercising an authority or power impartially for the benefit of the public ... Accordingly I am of the opinion that the failure to prevent the creation. of the private nuisance to the plaintiff by the removal of the tree was not something 'omitted to be done' under the 1919 Act" (pp.171-172). * As Meson J.A. concurred with Sugarman A.C.J's reasons for judgment. the ratio decidendi of the decision must lie in the notion of failure to perform a duty imposed by the statute as contrasted with failure to exercise a power conferred by it. Earlier, in Heathwood v. Murgon Shire Council (1941) Q.S.R. 275 the Queensland Full Court had approached the construction of a statute comparable, in relevant respects, to the Act, by saying at p.279: "However it seems clear that to secure the protection, the act must be done in the direct execution of the statute, and~ that it must be done in performance of a public duty and not of a mere private duty owed to some individual". This approach, which is similar to that adopted by Asprey J.A. in Peisley, was derived from several English authorities including Bradford Corporation v. Myers (1916) 1 A.C. 242. However those authorities were concerned with legislation in different terms to the Act and, at least in some cases, a statute that spore expressly of public duty. In my view, the question whether something has been omitted to be done under the Act depends on whether there is a duty imposed on the respondent by the Act to do the thing in question. In that respect I adopt the approach taken by the majority in Peisley. The question is not one to be answered by reference to the cause of action as pleaded; it must be determined by reference to the facts pleaded which are said to constitute the cause of action. — To the extent that Knight v. Concord Municipal Council (1970) 3 N.S.W.L.R. 295 may be said to support the view that omission by a statutory body to exercise a power is something omitted to be done under an Act, I am of the respectful opinion that the decision should not be followed. 10. The respondent sought to meet the approach taken in Peisley by Sugarman A.C.J. and Mason J.A. by submitting that the power under the Act to repair, maintain, manage and control premises carried with it a duty to take reasonable care in the exercise of those powers. It followed, said the respondent, that any omission pleaded by the appellant was an omission to observe a duty under the Act. In my view the conferring of powers on the respondent by the Act did not carry with it any duty in the relevant sense. Bradford Corporation v. Myers supra at pp.248,260. In saying that, I do not overlook ss.26 and 31 of the Act which provide for a letting at an economic rent, the calculation of which includes an allowance for maintenance. But I am unable to find in those'sections or elsewhere in the Act any duty imposed, expressly or by implication, on the respondent to exercise its powers to repair and maintain premises. It is in the particulars pleaded in para. 8 of the statement of claim that the things said to have been omitted to be done are to be found. In my view these are not things omitted in the performance of some duty imposed by the Act. In consequence they are not matters for which notice under sub-s.35(€1) of the Act was required; nor was the action one required to be commenced within the,time limit specified by sub-s.35(4). In so far as some particulars may assert things done for or on behalf of the respondert, the position may be different. I do not find it necessary to resolve that question; it touches only two of the particulars. Whether the particulars i2. remain in their present form and whether the evidence will support them of course remains to be seen. But this Court must deal with the appeal on the basis of the statement of claim as it stands. The appeal should be allowed. The judgment striking out the statement of claim and directing that judgment be entered for the respondent should be set aside. The respondent should pay the costs of the application to the Supreme Court and the costs of this appeal. : ' I certify that this and the ten preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Toohey { . v Lussiten Fiavavraz ee Associate Dated: 6 April 1984 IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY OF AUSTRALIA NO. NTG. 37 of 1983 DISTRICT REGISTRY GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY AT DARWIN BETWEEN: COLIN PETER DAVIS Appellant AND: NORTHERN TERRITORY HOUSING COMMISSION Respondent REASONS FOR DECISION Coram: Toohey, McGregor, Fitzgerald JJ. Date: 6 April 1984 McGregor J. This 1S an appeal by COLIN PETER DAVIS (appellant) against a decision of the Chief Justice of the Supreme Court of the Northern Territory given on 28 October 1983 wherein he ordered that a Statement of Claim in which the appellant had sued the NORTHERN TERRITORY HOUSING COMMISSION (respondent) be struck out and a judgment be entered for the respondent. The appellant claimed to have becn the tenant of the respondent at Kurringal Flats and to have been injured on 4 October 1980 when he slipped on a wet slippery surface on a stairway at the flats suffering personal injury thercby. The area wherein he slipped is part of the common area available to all tenants of the building. On 5 September 1983 the appellant issued a Writ against the respondent for personal injuries said to have been suffered 1n the accident. The specially endorsed Statement of Claim with the Writ alleged that there was implied in the tenancy agreoment between the parties a covenant by the respondent to keep the common parts and facilities of the building of flats in good repair and in proper lighting; and further, the premises being premises within the meaning of the Tenancy Act 1979-1982, a covenant implied by s.55 of that Act imposing on the respondent as landlord an obligation to keep any common areas in a clean and safe condition. It was further alleged the respondent remained at all matcrial times in occupation of the common areas of the building; that 1t was an express term of the tenancy agreement that the appellant had the right to use those areas and that the respondent as occupier of those areas, of which the stairway where the said personal injuries were received was part, was in breach of the duty of care it owed to the appellant as an invitee upon the land. It was common ground between the parties that no notice of action as referred to in the Housing Act 1959-1979 (the Act) s.35 was served on the respondent stating the cause of action and other matters required by s.35(1) of the Act. Further, 1t 1S apparent that the action had not been commenced as required by s.35(4) of the Act within twelve months next succeeding the accruing of the alleged cause of action. Section 12 of the Act headed "FUNCTIONS OF COMMISSION" reflecting the purpose of the Act as revealed in its preamble read - "Subject to this Ordinance, the functions of the Commission are - {a) to provide and to assist in the provision of residential accommodation; and (b) to provade accommodation, residential, office, industrial or other, for the Commonwealth and the Territory public purposes." It was common ground that the respondent caused the flats to be erected and let pursuant to these functions. Section 12A headed "POWERS OF COMMISSION", so far as relevant, read - "(1) The Commission has power to do all things necessary or convenient to be done for or in connexion with the performance of its functions and the exercise of its powers. (2) Wathout limiting the generality of sub- section (1), the Commission may, for the purpose of carrying out its functions and exercising its powers —- (a), (b), (c), (ad) ..-. (e) let premises; (f£) .... (g) maintain, manage and control premises; (h), (1), (3), (k), (m), (n) ...." A consideration of the use of the word "maintain" in ss.12A, 12D and 31 as defined in the ltlousing Act 1982 s.5, suggests that it was concerned with e.g. repairing damage or rectifying a condition of disrepair on premises and not with keeping premises clean or safe or giving whatever attention 1s necessary to rectify a slippery surface. Schedule 4 Clause (1) of the Tenancy Act lends further support to this. I have not found in the Act any requirements as to the form of tenancy agreements or covenants to be included in them; $s.39A(3)(b), for example, although referring to terms and conditions did not specify their content. Section 35, though now repealed, applied to this action. So far as relevant, it read - ' "(1) An action shall not be brought against the Commission or a member or servant or agent of the Commission for anything done or intended or omitted to be done for or on behalf of the Commission under this Ordinance, until the expiration of one month after notice in writing has been served on the Commission or person to be sued, clearly stating the cause of action and the name and place of abode of the antended plaintiff and of his solicitor or agent. (2) On the trial of such an action, the plaintiff shall not be permitted to go into evidence of any cause of action which was not stated in the notice so served. (3) Unless such notice is proved, the Court shall find for the defendant. (4) Such an action shall be commenced within the 12 months next succeeding the accruing of the cause of action, and not afterwards. The basis of the decision of the learned primary Judge was that the acts and omissions alleged against the respondent in the Statement of Claim were, in his view, "done or omitted to be done...under this Act." Accordingly he found that s.35 of the Act applied. The respondent has appealed claiming, inter alia, that the learned primary Judge was in error in finding that s.35 of the Act applied to acts done by the Housing Commission as well as acts done for or on behalf of it as contemplated in the terms of s.35. He submitted further that the Learned primary Judge had Failed to have regard to the proper interpretation of certain authorities; to distinguish between the respondent's power to maintain and its duty to maintain premises in a safe condition being a common law duty as well as referred to in the Tenancy Act and not one referable to Lhe Act. His client, he said, sued for acts or omissions by the respondent as owner/occupier and not "for or on behalf of" 1t; that what was done was not done "under" the Act. Lle referred to Peisley v. Ashfield Municipal Council 23 L.G.R.A. 166; Varga v. Jongen (1970) 92 W.N. (N.S.W.) 1032; Board of Fire Commissioners (N.S.W.) v. Ardourn (1963-1964) 109 C.L.R. 105 at p.109; Bradford Corporation v. Myers (1916) A.C. 242. Counsel for the respondent submitted that the respondent was a landlord only because of 1ts position under the Act; that if the Tenancy Act Schedule 4 Clause (1) 1ncluding 6. sub-para.(e) applied to a letting under the Act, the power to be exercised was referable to the Act; 1t would follow that any failure to carry out a cleaning operation would be a breach of the duty found in, or imposed pursuant to, the Act and thus subject to the limitations in s.35. This letting, he said, was part of the respondent's duty to let referable to the Act; Maintaining was not merely incidental to but part of the respondent's duty under that Act and so similarly controlled by s.35. Arguments advanced for the parties need not be fully set out here. We have not been asked to consider the jurisdiction of the learned primary Judge to order that judgment be entered at an interlocutory stage in the action; nor have principles such as those discussed in General Stcel Industries Inc. v. Commissioner for Ra1lways (N.S.W.) (1964-1965) 112 C.L.R. 125 been invoked by the appellant. 'lhe tenancy agreement was not before the learned primary Judge cr this Court. There are well established principles of the common law relating to landlord occupier's liability to tenants who are entitled to use those areas of a flat dwelling not included in a letting of any one flat. Such principjJes refer to the duty of care Owed by occupicrs to categories of persons on premises. The lodger in a tenant's flat, at least one who has the permission of the landlord to use the common stairway, has been held to be the licensce of the landlord. Sec Fairman v. Perpetual Investment Building Society (1923) A.c. 74 per Lord Atkinson at p.85, Lord Sumner at p.92, Lord Wrenbury at p.95. The tenant has, in respect of common areas, been held to attract a higher duly from the landlord viz. that owed to an invitee: Dunster v. Hollis (1918) 2 K.B. 795. It may be that these standards of care which are not always expressed in the same terms have blurred as time has passed. We are not concerned to try to define any quantum of duty which could only be done by the primary Judge in the light of the facts he found. It 1s conceded for the purpose of this hearing that s.55 and thus Schedule 4 Clause (1) (e) of the Tenancy Act applied to this letting. They read - "55 IMPLIED TERMS Other than a lease, or proposed form of lease, approved under section 55A, every lease of premises, written or otherwisc, shall be read as including as terms of that lease the terms set out in Schedule 4." "SCHEDULE 4 Section 55 IMPLIED COVENANTS AND CONDITIONS 1. On the part of the lessor - (e) an the case of shared accommodation or where the premises include more than one caravan or demountable building, to keep any common area in a clean and safe condition; and...." The "premises" referred to there are not readily to be equated with a multiple flat building with common areas. Reference may be made to some of the authorities cited in argument. They have a restricted value since they refer to limitation sections in terms different from those of s.35. Nevertheless in Varga v. Jongen (supra) limitation sections were considered which were not significantly dissimilar to s.35. The facts ancluded that a motor omnibus owned and operated by the Commissioner for Government Transport was involved in a collision. An action was brought against the driver, an employee of the Commissioner. It was held that in driving the omnibus the defendant was doing something which the law gave him a raght to do; what he did was not "done under" the relevant Act (p.1039); or in the exercise or performance of any power, authority, duty or function conferred or imposed (by that Act). In Board of Fire Commissioners iN.S.W.) v. Ardouin (supra) the respondent brought an action for personal injuries received by him when a motor cycle which he was riding came into collision with a motor vchicle belonging to the fire brigade. The limitation section was dissimilar. However, the words of Dixon C.J. at p.109 are of assistance. He said — "When s.46 speaks of the bona fide exercise of the Board's powers it appears to me to be referring primarily to the exercise of powers which of their nature will involve interferences with persons or property." Later, he said, the section did not refer to "performing the functions of the Board, which are of an ordinary character". Kitto J. at p.116 said that in enacting s.46, the legislature was - " ....not intending that such an immunity, granted in the general interest but at the cost of individuals, should be carried further than a jealous interpretation will allow." In Peisley v. Ashfield Municipal Council (supra) a houseowner sued the Council to recover the cost of rectification of certain drainage damaged by roots of trees which entered the land. The trees had been planted by the Council. Section 580 of the Local Government Act 1919-1970, a lamitation section, provided that a writ could not be sued out or served upon the Council for ~ "anything done or intended to be done... under this Act...." It was held that planting trees was not a thing "done" under this Act. Sugerman A.C.J. (as he then was) (p.169) decided there was nothing "omitted to be done under this Act". "If there was a wrong....by a failure to remove poplars....this was a wrong at common law and not by way of omission to perform any duty imposed by the Act." Mason J.A. agreed with the reasons of Sugerman A.C.J. Asprey J.A. concurred in the result but his reasons were somewhat different. What I conceive to be the essence of the decision is to be found in the above words of Sugerman A.C.J. They provide a firm guide for us in this matter. 10. We were pressed with arguments related to the words of various sections and their treatment in many cases. I have not found a consideration of the English authorities referring to the Public Authorities Protection Act of great assistance; its relevant terms are hardly comparable with those of s.35. I do not find the use of the words "for or on behalf of" in s.35 of great moment. 'They may do no more than recognise that a statutory body must have servants for it to carry out any action. Tt 1s not necessary to reach any conclusion on this, particularly as no detailed argument was offered on the point. It 1s common ground that in erecting and letting the flat premises the respondent was performing its functions and exercising its powers under the Act. There are then no provisions in the Act which refer directly to "ordinary" landlord and tenant duties and obligations. In failing to observe what are said to be impiicd terms in the letting the respondent was not, I consider, omitting anything to be done under the Act. Further, assuming the truth of the assertions in the Statement of Claim, the respondent was an occupier of the premises and may have owed to the appellant a duty of care referable to his status. Such a duty if there was one was not, in terms, imposed by the Act, but by the common law. Any breach of duty such as was alleged was not an omission to do anything "under this Act",which had not addressed itself to such duties, statutorily or common law imposed. ll. Section 35(4) of the Act implied a limitation of time for the commencement of an action of the kind referred to by s.35(1); so what is decided in relation to s.35(1) will apply also to s.35(4). It 1S unnecessary to try to resolve all the matters referred to in argument. Jndced we are in no position to do so. In my opinion a notice such as is referred to in s.35(1) was not required of the appellant in the circumstances alleged or conceded. I would uphold this appeal. a ' rl tig | J cCeany pra sae a Reasons for Judzn oi oer "our , Mr. Justies ML on. t Of tle ' ,4 Dated: ( 4p , 4 IN THE FEDERAL COURT OF AUSTRALIA ) NORTHERN TERRITORY OF AUSTRALIA ) DISTRLCT REGTSTRY ) No. NTG 37 of 1983 ) GiNISRAL DJ VISLON ON APPEAL FROM TIE SUPREME COURT OF THE NORTHERN TERRITORY OT AUSTRALIA BETWEEN : COLIN PETER DAVIS Appellant AND: NORV RN TERRTTORY MOUSING COMMISS10N Respondent CORAM: Toohey, McGregor and Fitzgerald Ju. DATE : 6 April 1984 REASONS FOR JUDGMENT Fitzyerald J.: This 1S an appeal from a judgment of the Supreme Court of the Northern Territory delivered on 28 October 1983. The primary judge held that the action of the appellant (the plaintiff in the Supreme Court) could not succecd by reason of 5.35 of the llousing Act 1959-1979 and ordered that the Statement of Claim be struck out and that judgment be entered for the respondent (defendant) with costs. The appellant accepts that, for present purposes, 1t 1s immaterial > Le that s.35 of the Housing Act has been repealed and that the Limitation Act 1981 has becore law. The respondent 1s and at all material times was the owner of "hurrinyal Flats". The respondent was incorporated under the Housing Act and has functions and powers under that Act. By s.12 1ts functions include the provision of residential accommodation and by s.12A it has power to do all things necessary or convenicnt to be done in connection with the performance of its functions and Lhe e:ercise of 1ts powers, including powers to build, let, repair, alter, extend, renovate, maintain, manage and control premises. Section 26 of the Housing Act also deals with the respondent's power to let premises. The appellant was a tenant at Kurringal Flats on 4 October 1980. He claims that on that day he sJipped on a wet and slippery step on a stairway at the [lats adjacenl to the tenants' carpark and was injured. On 5 September 19283, the appellant issued a writ claiming damages. According to the Statement of Claim endorsed on the writ, the appellant's injuries were caused by the respondent: (1) Yailing to clean properly and sufficiently regularly the sa1d common stepway of the said building of flats. (2) Causing or permitting the said common steps to be unsafe in that puddles of water accumulated in such steps. 3. (3) Causing or permitting the said steps to become smooth, shinv and slippery and chipped on the edges. (4) Fatling to ensure that water from the laundry located above the said steps did not run down the said steps to form puddles. (5) Failing to provide adequate or any handrails for support for persons using the said steps. mann eo meer Be Se ee (6) Talling to provide adequate or any lighting over Lhe said steps. lt 1s pleaded that the respondent thereby breached an implicd { term Of the tenancy agreement between the parttes obliging the respondent Lo keep the common areas and faclilitics of the flats wun good repair an@ proper lighting, and/or a covenant amplicd unto the tenancy agreement by s.55 of the Tenancy Act 1979-1982 obliging the respondent to keep the common areas and faciJities of the flats in a clean and safe condition, and/or that the respondent was negligent in that it breached a duty of care which as occupier of Lhe common = areas and facilities of the fFlals 1t owed to Lhe appellant as an invitee in respect OF those areas and Facilities by virtue ' of his tenancy of his flat. The respondent has accepted gtr ee ose for present purposes Lhat the Tenancy Act applies to its tenancy agreement with the appellant (see Venancy Act, s.5), and it did not argue that the terms contended for by the appellant would not otherwise be implied into the tenancy agreement or that the respondent did not in any event owe a common law duty of care as occupicr of the common areas a eee and facilities to the appellant as tenant of one of the ' flats. ey en ee 4. Section 35 of the Housang Act provided at the material times as Lollows: "35. NOPICL OF ACTION. (1) An action shall not be brought against Lhe Commission or a member or servant or agent of the Commission for anything done or yntended or omitted to be done for or on behalf of the Commassion under this Act, unti]) the expiration of one month after notice in writing has been served on the Commission or person to be sucd, clearly stating the cause of action and the name and place of abode of the antended plaintiff and of his solicitor or agent. (2) On the trial of such an action, the plaintiff shall not be permitted to go into evidence of any cause of action which was not stated in the notice so served. (3) Unless such notice is proved, the Court shal] find Cor the defendant. (4) Such an action shall be commenced within the 12 months next succeeding the accruing of the cause of action, and not afterwards. (5) A person to whom such notice of action 1s given may tender amends to the plaintiff or his solicitor or agent at any time within one month after service of the notice and, af the tender of amends 1s not accepted, may plead the tender." There 31s no suggestion that, 1f s.35 would otherwise apply, there are any circumstances which might be able to be raised by the appellant which would take this case out of the operation of the section. A body such as the respondent owes its very existence to a particular statute which usually grants functions and powers to the body and imposes duties upon it, allhough other powers and duties may be granted to or imposed upon such a body by other statutes, either specifically or in general terms, or by the general law. Every act or omission of such a body may be said to occur "under" its special statute in the sense that that statute 1s the ultimate source of the body's cxistence and capacities. However, that is not the meaning attributed to "under" in a provision like s.35: sce Board of Fire Commissionersof New South Wales v. Ardouin (1961) 109 C.L.R. 105. The Housing Act is a direct and immediate source of the respondent's powers in relation to the common areas and facilities of its flats, including its powers to enter anto and perform the terms of tenancy agreements which impose obligations upon it in relation to such areas and facilities. 'the respondent argued that, by 1ts grant of powers to the respondent, the Housing Act implicitly amposed duties upon the respondent in like terms; that 1s to say, to build, lect, repair, alter, extend, renovate, manage, maintain and control premises etc. Jn my Opinion, that contention cannot be sustained. There is no basis upon which 1t could be concluded that the grant by the 6. Housing Act of powers to the respondent in permissive terms makes tt compulsory for the respondent to exercise those powers: see, for example, Varga v. Jongen (1970) 92 W.N. (N.S.W.) 1032; Lamb v. Moss (1983) 49 A.L.R. 533, 549. The causes of action sought to be relied by the apoellant do not cxpressly assert cither non-performance by the respondent of duties imposed upon the respondent by the Housing Act in relation to the common areas and facilities of the flats or improper performance by the respondent of powers or duties under the Housing Act in relation to such areas and facijJities. 'the appellant's case 1s that, urrespective of the respondent's powers and duties under the Housing Act, the respondent has obligations under the tenancy agreement and under the common law. The appellant's claim is for breach of these obligations which are said to arise independently of the Housing Act. Nonetheless, 1t does not follow that the appeal must succeed. Section 35 1s not concerned to Jimit or exclude causes of action under the Housing Act or for hreaches of the Housing Act as such. LL operates upon particular acts or omissions asserted as the bases of causes of action, whether the causes of action are said to be breach of statute, or of contract, or of the general law. Jt is necessary to identify with precision what acts or omissions 7. are asserted against Lhe respondent and to see whether each act or omission was "done or intended or omitted to be done for or on behalf of" the respondent under the Housang Ack. Some at least of the allegations mace against the respondent by the appellant in the Statement of Claim zn the present case relate to allegedly wrongful omissions. In Peisley v. Ashfield Municipal Council (1971) 23 L.G.R.A. 166, Sugarman A.C.J. said at p.169 that a reference to things omiLlted to be done in a provision such as s.35 1s inserted only to bring within the ambit of the section a failure to perform a duty imposed by the Act which contains at, and reference was made to Benson v. Commissioner for Road Transport and Tramways (1935) 35 S.R.(N.S.W.) 348. Mason J.A., as his Jlonour then was, agreed. Sea also Varga v. Jongen, supra. Non-performance of what 1s empowered but not required by a statute is not in the material sense omitted to be done under the statute. To the extent that 1 1s the appellant's case that the respondent entirely omitted to perform acts which 1t was empowered but not required to perform by the Ilousing Act but was obliged to perform only by the tenancy agreement and/or its duty of care to the appellant under the general law, s.35 has no operation; such acts were not omitted to be done under the Housing Act. Insofar as 1t may be part of the appellant's case that the respondent cngaged in activities which, by reason of the wrongful manner of their excculion, constituted breaches of the tenancy agreement between the partics and/or the respondent's duty of care to the appellant under the general law, the position secms to me less clear. Although the wrongful performance by the respondent of its powers under the Housing Act 1s not the cause of action upon which the appellant sues, the liousing Act was a direct and immediate source of the respondent's power to engage in such activities (although not the wrongful mode of performance). However, whelher or not s.35 applics might depend upon the answer to Further questions. It might be necessary to decide whether the acts which were of a character which do not require special statutory authorization were performed under the Housing Act in the material sense (Ardouin, supra, UWudson v. Venderheld (1968) 118 C.L.R. 171; Varga, supra), whether the activities were engaged in "for or on behalf of" the respondent, and perhaps whether they were enyuyed in for the public benefit and whether or not the powers pursuant to which they were engaged 1n were subsidiary powers: Firestone Tire and Rubber Co.(S.S.) Ld v. Singapore Ilarbour Board (1952) A.C. 452. 2 should add that my tentative view is that no assistance is to be obtained from the latter case and the English authorities dealing with similar provisions to that there discussed, all of which scem Lo turn very much on the considerably different language of those provisions. 9. In view of the conclusion at which | have arrived that the omissions aJleged against the respondent are outside the ambit of s.35, the appeal must succeed and the judgment for the defendant be set aside. It scems to me quite inappropriate in those circumstances to enter upon the further questions to which I have referred at this stage of the proceedings. Such issues are obviously better addressed at the trial when the appellant's claim has been finally formulated and the evidence has been investigated. It 1s sufficient for the moment to observe that s.35 of the Housing Act does not constitute a complete defence to every cause of action which has been asserted by the appellant 1n relation to the injury which he allegedly suffered on 4 October 1980. I would allow the appeal, sect aside the judgment for the respondent and the order striking out the SlLatement of Claim, and dismiss the respondent's sunmons. The respondent must pay the taxed costs here and below. I certify that this and the previous 8 pages are a true copy of the Reasons for Judgment of his lonour Mr Justice Fitzgerald. 6 April 1984