Housing Authority v Garlett
[2025] WASC 125 (S)
•19 JUNE 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: HOUSING AUTHORITY -v- GARLETT [2025] WASC 125 (S)
CORAM: HOWARD J
HEARD: ON THE PAPERS: LAST SUBMISSIONS 11 JUNE 2025
DELIVERED : 19 JUNE 2025
FILE NO/S: CIV 1354 of 2024
BETWEEN: HOUSING AUTHORITY
Applicant
AND
BARRY GARLETT
Respondent
Catchwords:
Practice and procedure - Where questions of law reserved by Magistrates Court under s 25(1) of the Residential Tenancies Act - Whether question can be referred back to Magistrates Court for amendment
Legislation:
Residential Tenancies Act 1987 (WA)
Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)
Result:
A question reserved to this Court by the Magistrates Court be sent back to the Magistrates Court for amendment
Category: B
Representation:
Counsel:
| Applicant | : | Mr A Shuy |
| Respondent | : | Mr M Albert |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Circle Green Community Legal |
Case(s) referred to in decision(s):
Australian Commonwealth Shipping Board v Federated Seamans Union of Australasia (1925) 36 CLR 442
Housing Authority v Garlett [2025] WASC 125
Lowe Pty Ltd v Belgravia Nominees Pty Ltd [2020] WASCA 180
Martin v Employers Mutual Ltd [2012] SASCFC 36; (2012) 112 SASR 436
Mohammadi v Bethune [2018] WASCA 98
R v Assange [1997] 2 VR 247
Re Minister for Heritage; ex parte City of Fremantle [2000] WASCA 156; (2000) 22 WAR 342
Re Robins SM; ex parte West Australian Newspapers Ltd [1999] WASCA 16; (1999) 20 WAR 511
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
Waite v Hennah [2021] WASCA 69; (2021) 96 MVR 58
HOWARD J:
On 17 April 2025, I published my reasons in Housing Authority v Garlett [2025] WASC 125 which were reasons in Mr Garlett's matter in CIV 1354 of 2024 and in Ms GT's matter in CIV 1325 of 2024 (principal reasons).
These supplementary reasons assume a familiarity with the principal reasons and use the same abbreviations.
These supplementary reasons concern the final orders which should be made in Mr Garlett's matter. The parties are agreed as to the orders which should be made in Ms GT's matter.
As recited in [9] of the principal reasons, Mr Garlett's matter came to this Court by way of two questions of law reserved by the Magistrates Court by order made 8 March 2024 pursuant to s 25 of the Residential Tenancies Act 1987 (WA).
The questions reserved were:
QUESTIONS OF LAW
1.For a termination notice issued under section 70A of the Residential Tenancies Act 1987 (WA) (RT Act) to be valid, is the Housing Authority required to:
(a)afford procedural fairness to the tenant or tenants prior to deciding to issue such a notice; and/or
(b)make a decision to issue such a notice that is legally reasonable?
2.If the answer to question 1 is yes, is the determination of the validity of a termination notice under section 70A of the RT Act within the power or jurisdiction of the Magistrates Court, in proceedings for an order terminating the agreement and an order for possession of the premises under section 72 of the RT Act? [1] (original emphasis)
[1] Annexure A of the Garlett Orders made 8 March 2024.
In my principal reasons I said that:
1.I would have answered the first Question 'no';[2] and
2.I considered the second Question to be framed too widely.[3]
[2] Principal reasons [71] ‑ [72], [189]
[3] Principal reasons [191].
I also said that if the second Question was effectively limited to asking whether the Magistrates Court could determine the validity of a termination notice under s 70A of the RT Act by reference to the considerations in (a) and (b) of the first Question, then I would have answered such an amended question 'no'.[4]
[4] Principal reasons [192].
Following the publication of the principal reasons, I invited the parties to confer and formulate the final orders which they said should be made.
The parties are agreed on how the first Question should be answered and the costs orders which should be made.
The parties disagree on how the second Question should be answered.
The parties filed further short written submissions on the form of the final orders concerning the second Question.[5]
[5] Mr Garlett's submissions dated 23 May 2025 and filed 17 June 2025; Housing Authority's submissions filed 11 June 2025.
The Housing Authority principally submits that I should order, effectively, the second Question to be sent back to the Magistrates Court for amendment.
The amended second Question proposed by the Housing Authority is as follows:
Can the Magistrates Court conduct a collateral review of, or entertain a collateral challenge to, a decision by the Housing Authority to issue a notice under section 70A of the RT Act, by reference to the considerations agitated by Question 1?[6] (emphasis omitted)
[6] Email sent from the parties to my Chambers on 16 May 2025.
The Housing Authority submitted that I should then answer that question 'no', presumably, once the second Question is so amended.[7]
[7] Email sent from the parties to my Chambers on 16 May 2025.
Initially, the Housing Authority submitted that I should make that order pursuant to O 31 r 8(4) of the Rules of the Supreme Court 1971 (WA) (RSC).[8]
[8] Email sent from the parties to my Chambers on 16 May 2025.
In the substantive hearing, Mr Garlett had submitted that the Court did not have power to amend a question.[9] That submission arose in a different context. Nonetheless, as will be seen, Mr Garlett maintains that submission.
[9] 17 September 2024 ts 28 - 29.
Further, Mr Garlett contends that in considering a reserved question from the Magistrates Court under s 25 of the RT Act, this Court cannot amend the second Question pursuant to O 31 r 8(4) of the RSC.
Mr Garlett consequently submits that I should state 'not answered' in response to the present second Question.[10]
[10] Mr Garlett's submissions dated 23 May 2025 and filed 17 June 2025 [6].
By its further submissions,[11] the Housing Authority submits that:
1.O 31 r 8(4) can operate to allow the second Question to be sent back to the Magistrates Court for amendment;[12]
2.alternatively, this Court has power under s 21(3) of the Supreme Court Act 1935 (WA) to cause the second Question to be amended by the Magistrates Court;[13] or
3.alternatively to its first two submissions, this Court should answer the second Question on a 'limited basis' without it being amended.[14]
[11] Housing Authority's submissions filed 11 June 2025.
[12] Housing Authority's submissions filed 11 June 2025 [3(a)].
[13] Housing Authority's submissions filed 11 June 2025 [3(b)].
[14] Housing Authority's submissions filed 11 June 2025 [3(c)].
Mr Garlett submits that:
1.this Court cannot amend a question which has been reserved under s 25 of the RT Act by reference to Martin v Employers Mutual Ltd[15] and R v Assange;[16]
2.more particularly, the reference to 'tribunal' in O 31 r 8(4) does not include the Magistrates Court;[17] and
3.in any event, O 31 r 8 only applies if the 'procedure' set out in O 31 has been utilised by the parties, which did not occur here.[18] There is no deeming provision or rule which 'converts' the reservation of the questions under s 25 of the RT Act to one that 'marries' with O 31.[19]
[15] Martin v Employers Mutual Ltd [2012] SASCFC 36; (2012) 112 SASR 436 [16(5)].
[16] R v Assange [1997] 2 VR 247, 253.
[17] Mr Garlett's submissions dated 23 May 2025 and filed 17 June 2025 [4(a)].
[18] Mr Garlett's submissions dated 23 May 2025 and filed 17 June 2025 [4(b)].
[19] Mr Garlett's submissions dated 23 May 2025 and filed 17 June 2025 [4(c)].
As he filed his further submissions first, Mr Garlett has not directly responded to the second and third submissions advanced by the Housing Authority in its further written submissions.
This Court amending the second Question
As noted, Mr Garlett refers to two appellate decisions to support his submission that there is no power for this Court to amend the second Question.
At least insofar as the Housing Authority submits that this Court should send the second Question back for the Magistrates Court to amend, it may be thought that this submission of Mr Garlett's is negativing a submission not put against him.
In R v Assange, Hayne JA (as he then was) for the Court considered that it was not appropriate to answer the particular questions as reserved.
His Honour tended to the view that the court below had no power to reserve the particular questions under the particular provisions of the Crimes Act 1958 (Vic) then in force.[20]
[20] R v Assange, 254 - 255.
While it was not central to the decision, Hayne JA alluded to the power under s 448 of the Crimes Act to send the case reserved back for amendment.[21] However, his Honour considered that would not cure the difficulties which the Court of Appeal saw with the questions reserved.
[21] R v Assange, 250.
At the relevant time, s 448 of the Crimes Act (Vic) provided:
The Court of Appeal when a case has been reserved for its opinion shall have power if it thinks fit to cause the case to be sent back for amendment; and thereupon the same shall be amended accordingly and the judgment of the Court of Appeal shall be delivered after it has been amended.
It may be accepted that his Honour, after reviewing a number of authorities, stated that:
… the court to whom the case is stated must confine itself to the facts that are stated and to the questions that are reserved.[22]
[22] R v Assange, 253.
However, with respect, I do not consider that the case is an authority against the Housing Authority's submissions. It is a case, to my reading, which materially turned on the particular statutory provisions then in force in the Crimes Act (Vic).
In particular, if there were power by the express provision of O 31 r 8(4) in this case, I consider R v Assange says nothing as to the availability of that power in this Court.
The second case cited by Mr Garlett, Martin v Employers Mutual Ltd[23] followed a referral from the Workers Compensation Tribunal under its statute.[24]
[23] Martin v Employers Mutual Ltd [2012] SASCFC 36; (2012) 112 SASR 436.
[24] Workers Rehabilitation and Compensation Act 1986 (SA).
As may be seen from the particular paragraphs cited by Mr Garlett, the Full Court held, consistently with its earlier decisions, that there was no statutory power in the workers compensation legislation nor in the Supreme Court Act 1935 (SA), which authorised the Court to amend the questions of law referred to it.[25]
[25] Martin v Employers Mutual Ltd [16(5)].
Accordingly, in my view, the case of Martin v Employers Mutual Ltd also turns on the particular statutory provisions in South Australia and is not of assistance here.
Order 31 r 8
Order 31 r 8 provides as follows:
8.Cases stated to Court (not Court of Appeal) by other courts etc.
(1) This rule applies to cases not stated in the Court and to cases stated by any tribunal which is empowered or may be required to state a case on a question of law for determination by or the opinion of the Court.
(1a) This rule does not apply to a case stated by a tribunal which is empowered or may be required to state a case on a question of law for determination by or the opinion of the Court of Appeal.
(2) Every case to which this rule applies shall be entered for argument before the Court, and any party may file the memorandum of entry, and the party making the entry shall on the same day serve on all other parties a copy of the case and notice of the entry.
(3) Rule 1(3), rule 3(2) and rule 7 shall apply to cases under this rule as they apply to special cases stated in the Court.
(4) On the hearing of the case, the Court may order it to be sent back to the tribunal for amendment with such directions (if any) as the Court thinks fit.
(5) The proper officer shall notify the tribunal of the decision of the Court on the case, and of any directions given by that Court thereon.
(6) In this rule tribunal includes any authority or person which or who is empowered or may be required to state a case for determination by or the opinion of the Court. (original emphasis).
Both parties approach the question in dispute between them as one of statutory interpretation which, with respect, is correct.
The general principles of statutory interpretation are well‑established.[26]
[26] See e.g. Waite v Hennah [2021] WASCA 69; (2021) 96 MVR 58 [84] (Mazza, Beech and Vaughan JJA); and Lowe Pty Ltd v Belgravia Nominees Pty Ltd [2020] WASCA 180 [174] (Quinlan CJ, Mitchell and Beech JJA).
The principles were summarised by the Court of Appeal in Mohammadi v Bethune[27] at [31] ‑ [36] and do not need to be re‑stated in full here.
[27] [2018] WASCA 98 (Martin CJ, Mazza and Beech JJA).
The task of construction begins and ends with the statutory text and throughout the process the text is construed in its context.[28] The Court of Appeal cited the judgment of Keifel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection:[29]
Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[30] (citations omitted and emphasis added)
[28] Mohammadi v Bethune [31].
[29] SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362.
[30] SZTAL v Minister for Immigration and Border Protection [14].
The second principle particularly relevant here concerns the structure of the subject legislation:
The objective discernment of the statutory purpose is integral to contextual construction. The statutory purpose may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of relevant provisions.[31] (citations omitted and emphasis added)
[31] Mohammadi v Bethune [33].
In my view, the context and structure in which the meaning and scope of O 31 r 8 falls to be considered is that it is a facilitative provision applying to an apparently broad range of tribunals and, necessarily, to the statutes by which cases may be stated to this Court.
Also, while more detailed provisions are made in O 31 rr 1 - 7 as to questions of law stated within this Court or for the Court of Appeal, r 8 apparently operates more generally or to a broader range of circumstances.
Was this a case stated?
By O 31 r 8(1), the first issue might be thought to be whether the Questions were relevantly within a case stated on a question of law for determination by this Court.
Relevantly, s 25(1) of the RT Act provides as follows:
(1) A competent court hearing proceedings may reserve any question of law for the decision of the Supreme Court.
As I understand it, Mr Garlett submits effectively that the parties here did not utilise O 31 and so the reserved Questions could not be within O 31 r 8(1) (and so the procedure under O 31 r 8(4) was not available).
In my view, the natural reading of O 31 r 8(1) is that 'stating a case' on a question of law is not used in any particular technical manner. It appears to have a broad operation by its references to 'any tribunal' and by a lack of prescription as to how such a tribunal may be 'empowered or may be required' to state a case.
I do not consider there is anything in the language s 25(1) of the RT Act which necessarily would take the Questions outside of the relevant meaning of O 31 r 8(1).
In that respect, it seems to me significant that the two Questions here were not reserved in a vacuum but were reserved on the basis of Agreed Facts and Documents which were attached to the order of the Magistrates Court dated 8 March 2024.
Isaacs J (as he then was) in Australian Commonwealth Shipping Board v Federated Seamans Union of Australasia said:
It is absolutely settled law both in England and in Australia that the expression “state a case” involves stating facts, that is, the ultimate facts, requiring only the certainty of some point of law applied to those facts to determine either the whole case or some particular stage of it - the stage at which the case is stated … [32] (citations omitted)
[32] Australian Commonwealth Shipping Board v Federated Seamans Union of Australasia (1925) 36 CLR 442, 450. His Honour was referring to s 31 of the Commonwealth Conciliation and Arbitration Act1904.
In my view, the reservation of the Questions by the Magistrates Court on the basis of the Agreed Facts and Documents was the Magistrates Court stating a case on a question of law, following that settled law.
In short, I do not consider that the reserving a question of law (which is the language of s 25(1) of the RT Act) is something different from stating a case on a question of law (which is the language of O 31 r 8(1)). Unsurprisingly, at different times, different statutes have employed different expressions for the process of putting a question of law to this Court for its determination or its decision.
Mr Garlett further contends that as O 31 r 8(2) and O 31 r 3(2) (applied by r 8(3)) were not complied with by the parties in Mr Garlett's proceeding before this Court, and so the reserved Questions could not be a case stated within the meaning of O 31 r 8(1) or (4).
With great respect, that seems to me to somewhat put the cart before the horse. That is, it seems to me that the issue is whether the reserved Questions were the Magistrates Court stating a case on a question of law for determination by this Court (leaving aside for the moment the question of whether the Magistrates Court is a tribunal) within the meaning of O 31 r 8(1).
If it was, then whether or not the parties complied with other provisions of O 31 r 8 would not be determinative.
In my view, when the Magistrates Court reserved the Questions to this Court under s 25(1) of the RT Act, it effectively stated a case on a question of law within the meaning of O 31 r 8(1).
Is the Magistrates Court relevantly a 'tribunal'
It may be immediately noted that the definition in O 31 r 8(6) is inclusive. That is, to my reading, the definition does not limit a 'tribunal' to an 'authority or person'.
In my view, O 31 r 8(6) provides a broad definition of 'tribunal' for the purposes of O 31 r 8.
The heading to O 31 r 8 would support an interpretation to the effect that 'tribunal' as defined in O 31 r 8(6) would include the Magistrates Court.
The Housing Authority identifies that the heading by s 32(2) of the Interpretation Act 1984 (WA), is not part of the 'written law' comprised by the RSC.
That is correct as far as it goes, but the heading seems to me to be within s 19(2)(a) of the Interpretation Act and so is available to be considered under s 19(1) and I would say particularly under s 19(1)(a) of the Interpretation Act.[33]
[33] Re Minister for Heritage; ex parte City of Fremantle [2000] WASCA 156; (2000) 22 WAR 342 [62] (Wheeler J, as she then was, with whom Wallwork J agreed).
The Housing Authority relies on dictionary definitions of 'tribunal' from the online Macquarie and Oxford English Dictionaries as at 11 June 2025.
The second definition of 'tribunal' provided by the Macquarie Dictionary 6th ed is: 'a court of justice'; and the second definition provided by the Shorter Oxford English Dictionary 5th ed is: 'a court of justice' or 'judicial authority'. [34]
[34] The use of these dictionaries has received both judicial and academic support: see Pearce, Statutory Interpretation in Australia (10th ed) [3.40]; Hertzfeld & Prince, Interpretation (3rd ed) [2.130] and the cases cited therein.
Dictionaries have been referred to in 'thousands' of cases by courts for guidance.[35] I consider it trite that regard may be had to a dictionary to assist with determining the natural and ordinary meaning or meanings of a word. That is, as long as it be borne in mind that the dictionary is only the starting point and is not a substitute for the process of statutory construction.[36]
[35] Pearce, Statutory Interpretation in Australia (10th ed) [3.36].
[36] Pearce, Statutory Interpretation in Australia (10th ed) [3.36]; Herzfeld & Prince, Interpretation (3rd ed) [2.140].
In its natural and ordinary meaning identified by those dictionaries, the word 'tribunal' would include a court.
In my view, the ordinary meaning of the word in O 31 r 8 would also include the Magistrates Court. If that conclusion required buttressing, then it is provided, in my view, by the heading to O 31 r 8 pursuant to s 19(1)(a) of the Interpretation Act.
Mr Garlett argues that other Rules distinguish between an 'inferior court' and a 'tribunal' and he cites, for example, O 56 rr 11 and 13.[37] It may be noted that O 56 rr 11 and 13 were repealed with effect from December 2013. It may be that Mr Garlett intended to refer to some different Rules.
[37] Mr Garlett's submissions dated 23 May 2025 and filed 17 June 2025 [4(a)].
Mr Garlett also drew on the distinction that he said was made by the general law between an inferior court and a tribunal, and he cited Re Robins SM; ex parte West Australian Newspapers Ltd.[38] In that case, the then Full Court by reference to well established authority considered, in part, what may be a reviewable jurisdictional error in a tribunal and, or, in an inferior court. With respect, I do not consider it bears on the question here. That is particularly so where there is a bespoke definition provided.
[38] [1999] WASCA 16; (1999) 20 WAR 511.
The Housing Authority submits, as I understand it, further or alternatively that the Magistrates Court could properly be described as an 'authority'.[39] With respect, I am not sure that is so, but I do not need to determine it.
[39] Housing Authority's submissions filed 11 June 2025 [19].
The Housing Authority further alternatively submits that a Magistrate could be described properly as an 'authority or person' within the meaning of O 31 r 8(6).[40] While, again, I do not need to determine that, I incline to the view that the power in s 25(1) of the RT Act is directed to a 'competent court' rather than to a Magistrate personally.
[40] Housing Authority's submissions filed 11 June 2025 [19].
Section 21(3) of the Supreme Court Act
The Housing Authority also relied on s 21(3) of the Supreme Court Act 1935 (WA) which provides:
(3) Any jurisdiction, whether original or appellate, which is conferred on or vested in the Court, or any one or more of the judges thereof sitting in court or chambers, or elsewhere when acting as judges, or a judge, after the commencement of this Act (whether by statute or otherwise), shall (except as otherwise provided by any such statute) be exercised (so far as regards procedure and practice) in the manner provided by this Act and the rules of court; or if no provision, or no appropriate provision, as to the exercise of any such jurisdiction is contained in this Act or in the rules of court, then such jurisdiction shall be exercised in such form, mode, and manner as the Court or a judge may from time to time direct.
I do not consider that s 21(3) of the Supreme Court Act provides a separate or independent basis on which the Court could send the question back to the Magistrates Court.
That is because I consider that, relevantly here, it would provide for, or facilitate, the application of O 31 r 8 by analogy if I were to hold that the Rule was not directly applicable.
If I am wrong and O 31 r 8 does not 'directly' apply to the questions reserved by the Magistrates Court here, then I consider that the jurisdiction to hear the reserved questions conferred by s 25(1) of the RT Act might be exercised in the manner provided by, in particularly, O 31 r 8(4) by analogous application (via s 21(3) of the Supreme Court Act).
That is, I would not read s 21(3) of the Supreme Court Act as allowing me, now, to direct that Mr Garlett's matter should be determined under O 31. If I am wrong about the availability of that power, I would not, as a matter of discretion, at this stage of the proceeding, make such a direction.
A more limited answer
The Housing Authority also proposed that if its first two submissions were not accepted, that the Court should provide a more limited answer to the second Question as follows:
Answer 2: No, with respect to the power or jurisdiction of the Magistrates Court to conduct a collateral review of, or entertain a collateral challenge to, a decision by the Housing Authority to issue a notice under section 70A of the RT Act, by reference to the considerations agitated by Question 1; otherwise unnecessary to answer.
The above answer is not to be taken as excluding the possibility that the Magistrates Court can review a section 70A notice on the basis of facial or patent invalidity.
If I am wrong and O 31 r 8 does not apply directly, or by analogy, to the reserved questions, I would not have answered the second Question as submitted by the Housing Authority above.
The Housing Authority submits that it would be desirable to answer the second Question in, at least, this limited way because a 'no answer' would complicate Mr Garlett's foreshadowed appeal.[41]
[41] Housing Authority's submissions filed 11 June 2025 [32(c)].
I do not consider that 'difficulty' is live where I propose to make an order pursuant to O 31 r 8(4).
Disposition
For the above reasons, I consider that there is power under O 31 r 8(4) to refer the second Question back to the Magistrates Court for amendment. Once that has been done, then I will answer the amended question 'no'. At that point I will also make orders which answer the first Question 'no' as agreed by the parties, and I will make the agreed costs order.
ANNEXURE 'A'
Pursuant to O 31 r 8(4) of the Rules of the Supreme Court, it is ordered that the second Question reserved to this Court by order made by the Magistrates Court on 8 March 2024 (in PER/RSTN/9451/2023) be sent back to the Magistrates Court to be amended by deleting the second question of law; and replacing it by the following:
(a)can the Magistrates Court conduct a collateral review of, or entertain a collateral challenge to, a decision by the Housing Authority to issue a notice under s 70A of the RT Act, by reference to the considerations agitated by Question 1.
Once amended, the Magistrates Court is to reserve Question 2 as amended pursuant to Order 1 above to this Court for its decision.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IF
Associate to the Hon Justice Howard
19 JUNE 2025
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