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

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 15 September 2026
• Neutral Citation: [2026] FCA 1346
• Date: 15 September 2026

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

NTD 24 of 2022
BETWEEN:	EDWARD PHILLIPS IN HIS CAPACITY AS THE PERSONAL REPRESENTATIVE OF THE ESTATE OF OTTO DANN First Applicant ELEANOR MANAKGU Second Applicant EDWARD PHILLIPS Third Applicant
AND:	CHIEF EXECUTIVE OFFICER (HOUSING) Respondent

order made by:	CHARLESWORTH J
DATE OF ORDER:	15 September 2026

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...