Higginson v Australian Capital Territory [2025] FCA 66

Higginson v Australian Capital Territory [2025] FCA 66

Leave to file a further amended statement of claim is granted except insofar as claims rely on implied contractual terms (common law or from Human Rights Act 2004 (ACT)) because the express statutory term ‘covers the field.’ Claims for breach of the statutory express term and under the unconscionable conduct provisions of the ACL (as enacted in the territory) are not so obviously futile or lacking reasonable prospects to warrant summary dismissal; these issues require determination at trial on full evidence.

Parties
Applicant: Gai Higginson; First Respondent: Australian Capital Territory; Second Respondent: Commissioner for Social Housing
Jurisdiction
Australia
Judgment Date
11 February 2025
Procedural Posture
Representative Action/class Action / Interlocutory – Applications for Leave to Amend Statement of Claim and for Summary Dismissal
Outcome
Leave to amend granted in part; summary judgment application otherwise dismissed.
Legal Topics
Leave to Amend Pleadings, Summary Dismissal, Breach of Lease – Quiet Enjoyment, Australian Consumer Law – Unconscionable Conduct, Standing of Government Bodies in Contract and ACL Claims
Practice and Procedure Contract Law Consumer Law Administrative Law Human Rights Leave to Amend Pleadings Summary Dismissal Breach of Lease – Quiet Enjoyment +2 more

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Parties

Gai Higginson

Applicant

Australian Capital Territory

First Respondent

Commissioner for Social Housing

Second Respondent

Procedural Posture

Representative Action/class Action / Interlocutory – Applications for Leave to Amend Statement of Claim and for Summary Dismissal

Legal Issues

  1. 1 Whether leave should be granted to file a further amended statement of claim
  2. 2 Whether the revised breach of lease contract claim discloses a reasonable cause of action or has reasonable prospects of success
  3. 3 Whether the Australian Consumer Law unconscionable conduct claim discloses a reasonable cause of action or has reasonable prospects of success

Ratio Decidendi

Leave to file a further amended statement of claim is granted except insofar as claims rely on implied contractual terms (common law or from Human Rights Act 2004 (ACT)) because the express statutory term ‘covers the field.’ Claims for breach of the statutory express term and under the unconscionable conduct provisions of the ACL (as enacted in the territory) are not so obviously futile or lacking reasonable prospects to warrant summary dismissal; these issues require determination at trial on full evidence.

Court Disposition

Leave to amend granted in part; summary judgment application otherwise dismissed.

Orders

  • Commissioner for Social Housing added as second respondent pursuant to r 9.05 of the Federal Court Rules 2011 (Cth).
  • Applicant granted leave to alter group description per draft FASOC, pursuant to s 33K(1) of the Federal Court of Australia Act 1976 (Cth).