Housing Authority v Garlett - [2025] WASC 125

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   HOUSING AUTHORITY -v- GARLETT [2025] WASC 125
CORAM:   HOWARD J
HEARD:   17 SEPTEMBER 2024 & 7 OCTOBER 2024; LAST SUBMISSIONS 5 NOVEMBER 2024
DELIVERED          :   17 APRIL 2025
FILE NO/S:   CIV 1354 of 2024
BETWEEN:   HOUSING AUTHORITY
Applicant
AND
BARRY GARLETT
Respondent

FILE NO/S: CIV 1325 of 2024
BETWEEN: GT
Applicant
AND
HOUSING AUTHORITY
Respondent

Catchwords:

Administrative law - Application for judicial review - Whether decision of the Housing Authority to terminate fixed term tenancy is amenable to judicial review - Where questions of law reserved for the decision of the Supreme Court under s 25 of the Residential Tenancies Act 1987 (WA) - Questions answered - Whether procedural fairness is to be accorded before making a decision to give a notice under s 70 A of the Residential Tenancies Act 1987 (WA) or the decision is to be made reasonably - Whether, and in what respects, a notice under s 70 A of the Residential Tenancies Act 1987 (WA) may be collaterally challenged in the Magistrates Court - Applications for judicial review dismissed

Legislation:

Children and Community Service Act 2004 (WA)

Housing Act 1980 (WA)
Judicial Review Act 2000 (Tas)
Magistrates Court Act 2004 (WA)
Residential Tenancies Act 1987 (WA)
Residential Tenancies Amendment Act 2011 (WA)
Rules of the Supreme Court 1971 (WA)
Sentencing Act 1995 (WA)

State Housing Act 1946 (WA)

Result:

Applications for judicial review dismissed

Category: B

Representation:

CIV 1354 of 2024

Counsel:

Applicant	:	Mr A Shuy & Ms G Mullins
Respondent	:	Mr M Albert & Ms F Lester

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Circle Green Community Legal

CIV 1325 of 2024

Counsel:

Applicant	:	Mr M Albert & Ms F Lester
Respondent	:	Mr A Shuy & Ms G Mullins

Solicitors:

Applicant	:	Circle Green Community Legal
Respondent	:	State Solicitor's Office

Cases referred to in decision(s):

Australian Crime Commission v Marrapodi [2012] WASCA 103, (2012) 42 WAR 351
Blanket v The Housing Authority [2014] WASC 409
Burgess v Director of Housing [2014] VSC 648
Director of Housing v Sudi [2011] VSCA 266; (2011) 33 VR 559
Director of Public Prosecutions v Head [1959] AC 83
Jacobs v OneSteel Manufacturing Pty Ltd [2006] SASC 32; (2006) 93 SASR 568
King v Director of Housing [2013] TASFC 9; (2013) 23 TASR 353
Murphy v The Crown (1989) 167 CLR 94
Ousley v The Queen (1997) 192 CLR 69
Patole v Child & Adolescent Health Service [2024] WASCA 126
Selby v Pennings (1998) 19 WAR 520

HOWARD J:

These reasons concern two sets of proceedings which raise many common issues.

Housing Authority v Garlett : factual background

This application concerns a residential tenancy dispute between the applicant in CIV 1354 as lessor (Housing Authority) and the respondent as tenant (Mr Garlett).
On 21 July 2022, the Housing Authority and Mr Garlett entered into a fixed term tenancy agreement (Garlett Agreement) in respect of a house in Perth.[1]
[1] Agreed Facts and Documents received from the Magistrates Court [1].
The Garlett Agreement term commenced on 16 August 2022 and expired on 15 August 2023.[2]
[2] Agreed Facts and Documents received from the Magistrates Court [1].
On 14 July 2023, the Housing Authority issued a termination notice to Mr Garlett (Garlett Termination Notice) in respect of the Garlett Agreement pursuant to s 70A of the Residential Tenancies Act 1987 (WA) (RT Act) (all statutory references from here are to this Act as at 1 July 2022, unless otherwise indicated).[3]
[3] Agreed Facts and Documents received from the Magistrates Court [2].
On 14 July 2023, the Garlett Termination Notice was served on Mr Garlett by pre-paid post.[4]
[4] Agreed Facts and Documents received from the Magistrates Court [3].
The Garlett Termination Notice required Mr Garlett to deliver up vacant possession of the house on 24 August 2023.[5] Mr Garlett failed to do so and he remains in possession of the house.[6]
[5] Agreed Facts and Documents received from the Magistrates Court [2].
[6] Agreed Facts and Documents received from the Magistrates Court [4].
On 29 August 2023, the Housing Authority commenced proceedings in the Magistrates Court of Western Australia seeking:
1.an order terminating the Garlett Agreement; and
2.an order for possession of the house pursuant to s 72 of the RT Act.[7]
[7] Agreed Facts and Documents received from the Magistrates Court [5].
By order made 8 March 2024, the Magistrates Court reserved the following questions of law for this Court pursuant to s 25 of the RT Act:
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? [8] (original emphasis)
[8] Annexure A of the Garlett Orders made 8 March 2024.
It is the Housing Authority's decision to issue the Garlett Termination Notice under s 70A (Garlett Termination Decision) which is the subject of Question 1 reserved to this Court.
The Housing Authority, in this Court, proposed a further 'ancillary question' as to whether the Garlett Termination Decision was amenable to judicial review at all.
Mr Garlett does not accept, necessarily, that this Court can answer the proposed ancillary question in the form proposed by the Housing Authority.
As will be seen, I have not considered it necessary to embark on a determination of the ancillary question.
The Housing Authority does not contend that it accorded Mr Garlett procedural fairness and does not seek to 'justify' the Garlett Termination Decision as being a legally reasonable one.

GT v The Housing Authority : factual background

On 25 January 2023, the applicant in CIV 1325 (Ms GT) as tenant, and the Housing Authority as lessor, entered into a fixed term tenancy agreement for a period of six months for a house in Kalgoorlie/Boulder; the expiry date of the tenancy was 25 July 2023 (First GT Agreement).[9]
[9] Affidavit of Ms GT sworn 12 April 2024 [13].
Ms GT has four children. When she moved into the home in January 2023, her four children were living with her. However, on 20 February 2023, Ms GT's children were taken into the care of the Chief Executive Officer of the Department of Communities under the Children and Community Service Act 2004 (WA).[10]
[10] Affidavit of Ms GT sworn 16 May 2024 [6].
On or about 7 July 2023, the Housing Authority decided to offer Ms GT a second fixed term tenancy agreement for a period of six months (GT Extension Decision).[11]
[11] Ms GT's submissions dated 28 June 2024 [1]; Submissions of the Housing Authority filed in CIV 1354 dated 12 July 2024 (Housing Authority's submissions) [1].
On or about 25 July 2023, the First GT Agreement was renewed or extended by agreement for a period of six months, on the same terms, expiring on 25 January 2024 (Second GT Agreement).[12]
[12] As will be seen, Ms GT did not accept that she made the Second GT Agreement entirely voluntarily, in that she did not know that there was an alternative: Affidavit of Ms GT sworn 16 May 2024 [16].
As I understand it, Ms GT does not accept that the Second GT Agreement legally had the effect of extending, renewing or creating a fixed term tenancy which expired on 25 January 2024.
Ms GT's evidence is that on 25 July 2023 she believed that she had no other option but to sign the Second GT Agreement if she wanted to keep living at the house.[13] The circumstances surrounding this encounter differ between the parties. In the result, it has not been necessary to resolve those differences.
[13] Affidavit of Ms GT sworn 16 May 2024 [15] - [16].
On 11 September 2023, Ms GT was sentenced to an immediate term of imprisonment for seven months with eligibility for parole in relation to driving offences.[14] As Ms GT was made eligible for parole, she could have been released from custody in December 2023.[15]
[14] Affidavit of Ms GT sworn 16 May 2024 [21]; GT6 and GT7.
[15] Sentencing Act 1995 (WA) s 93.
The Housing Authority says that on or about 12 December 2023, it received information that Ms GT would not be released from prison until April 2024, and its officers then recommended that the Second GT Agreement be terminated.[16]
[16] Affidavit of Mr Pritchard sworn 15 May 2024 DP4 and DP6.
On 13 December 2023, the Housing Authority decided to end Ms GT's tenancy at the end of the Second GT Agreement on 25 January 2024,[17] by issuing her with a notice of termination of the Second GT Agreement under s 70A of the RT Act (GT Termination Decision).[18] (From here I have referred to this and the Garlett Termination Decisions together as the Decisions).
[17] Affidavit of Ms Harrison sworn 17 June 2024 [25] - [29].
[18] Submissions of Ms GT dated 28 June 2024 [1]; Housing Authority's submissions [1].
On 3 January 2024, the Housing Authority issued Ms GT with a termination notice under s 70A, requiring Ms GT to deliver up possession of the house on 12 February 2024 (GT Termination Notice).[19]
[19] Affidavit of Ms Harrison sworn 17 June 2024 [31], CCMH 6 to 9; Affidavit of GT sworn 16 May 2024 GT8.
On or about 10 January 2024, Ms GT received the GT Termination Notice by letter sent to the prison; she then prepared a Housing Appeals Mechanism form.[20]
[20] Affidavit of GT sworn 16 May 2024 [26] - [28].
On 17 January 2024, Ms GT met with a Housing Authority Support Officer at prison. The details of this meeting differ between the parties.[21]
[21] Affidavit of GT sworn 16 May 2024 [28] - [29]; Affidavit of Ms Harrison sworn 17 June 2024 [27], [41].
On or about 22 January 2024, Ms GT received a letter from the Housing Authority informing her that her Housing Appeals request had been refused.[22]
[22] Affidavit of GT sworn 16 May 2024 [30], GT9.
On 12 February 2024, Ms GT did not deliver up possession of the house.[23] She remains in possession of the house.
[23] Affidavit of Ms Harrison sworn 17 June 2024 [44].
On 15 February 2024, the Housing Authority applied to the Magistrates Court seeking orders;
1. terminating the Second GT Agreement; and
2. for possession of the house pursuant to s 72 of the RT Act.[24]
[24] Affidavit of GT sworn 16 May 2024 [31].
Those proceedings are being held in abeyance until a decision is made in these proceedings.
By an application for judicial review made on 21 March 2024, pursuant to O 56 r 2 of the Rules of the Supreme Court 1971 (WA) Ms GT applies for:
1.judicial review;
2.a writ of certiorari; and
3.a declaration
in relation to the GT Extension and Termination Decisions made by the Housing Authority.[25]
[25] By an amendment made on 15 October 2024, by consent, Ms GT's application for judicial review was amended to include the GT Termination Decision made 13 December 2023.
On 31 March 2024, Ms GT was released from prison.[26]
[26] Affidavit of Ms GT sworn 16 May 2024 [24].
Ms GT's application in this Court was commenced out of time. The Housing Authority did not oppose her being granted leave to commence the application. If I had otherwise found for Ms GT, then I would have given her such leave.
Initially, the Housing Authority sought to argue that it had accorded Ms GT procedural fairness, at least in relation to the GT Termination Decision.
However, the Housing Authority, during the course of the hearing, resiled from that position and did not maintain that it had accorded Ms GT procedural fairness.[27]
[27] ts 222.
I think the ultimate position adopted by the Housing Authority was, with respect, undoubtedly correct. That has also had the result that some of the factual matters in issue, and some submissions of Ms GT have fallen away.

Legislative framework

Housing Act

I will start with the relevant statutory provisions because, ultimately, they will determine the limits of statutory power and this Court's power to review any or all of the decisions in question.[28]
[28] Patole v Child & Adolescent Health Service [2024] WASCA 126 (Patole)[7] (Quinlan CJ and Mitchell JA).
The Housing Authority was established under the State Housing Act 1946 (WA) and is continued in existence by s 6(1) of the Housing Act 1980 (WA) (Housing Act).[29] Pursuant to ss 7(1) and (3) of the Housing Act, it is a body corporate and agent of the Crown in right of the State.
[29] The relevant version of the Housing Act as at 20 September 2017. It remains unamended to date.
Those provisions are:
6.The Housing Authority
(1)The body corporate constituted under the repealed Act by the name "The State Housing Commission" is preserved and continues in existence for the purposes of this Act as a body corporate retaining the same corporate identity.
…
7.Authority a body corporate and Crown agency
(1)The Authority –
(a)is a body corporate with perpetual succession and a common seal; and
(b)is capable in law in its corporate name of suing and being sued.
…
(3)The Authority is an agent of the Crown in right of the State.
…
The preamble to the Housing Act states that it is an Act 'relating to housing, to make better provision for housing and improving housing standards and conditions in the State … to enable the carrying out of agreements and arrangements with respect to housing …'
By s 4, the objects of the Act are:
(a) the improvement of existing housing conditions;
(b) the provision of housing and land for housing;
(ca) the letting and leasing of houses, the provision of services relating to the letting and leasing of houses and the entry into arrangements for the provision of such services;
(c) the provision of assistance to enable persons to obtain accommodation or improve the standard of their accommodation;
(d) the encouragement of and participation in the development and redevelopment of land for housing and related purposes;
(e) the carrying into effect of agreements and arrangements entered into with the Commonwealth with respect to housing.
By s 11A(1), the Minister may give any directions to the Housing Authority with respect to the performance of its functions either generally or in relation to a particular matter.
Section 12 relevantly provides for the general powers of the Housing Authority as follows:
12.General powers of Authority
Subject to and for the purposes of this Act … the Authority —
(a) has and may exercise all the powers, privileges, rights and remedies of the Crown; and
(b)has and may exercise all such powers, authorities and discretions, and may do all such acts and things, as a private person in the State has or may exercise or do, and the Authority generally may do whatever it deems necessary in connection with or incidental to the functions conferred upon it; …
Division 3 of Part III of the Housing Act provides generally for the Housing Authority to let or lease houses. For example, s 28 and s 29 relevantly provide:
28. Power to let or lease houses
The Authority may let or lease any house or house and land held by the Authority to any eligible person …
29. Terms and conditions
(1)A house or house and land may be let under this Division on a weekly or such other periodic tenancy as the Authority thinks fit or may be leased under this Division for such period as the Authority thinks fit.
(2)The terms, covenants and conditions of a tenancy or lease under this Division shall be such terms, covenants and conditions as the Authority thinks fit and shall be set out in a tenancy agreement in an approved form.
As seen, s 28 refers to an eligible person; that is a reference to a person who satisfies the conditions of eligibility from time to time determined by the Housing Authority and approved by the Minster for the purposes of that provision.[30]

RT Act

[30] Housing Act s 5(2).

The parties agreed that the applicable iteration of the RT Act was as at 1 July 2022.
The preamble provided that it was an Act 'to regulate the relationship of lessors and tenants under residential tenancy agreements' …
The RT Act provided that it applied to:
5. Application of Act
(1) Subject to this section and sections 6 and 7, this Act applies to any residential tenancy agreement entered into, renewed, extended, assigned or otherwise transferred after the commencement of this Act.
Part V of the RT Act provided for the termination of residential tenancy agreements. Within Part V, ss 60, 70A, 72 and 76C are particularly relevant. They provided:
60. How residential tenancy agreements and tenant’s interests in agreements are terminated
(1) Despite any Act or law to the contrary, a residential tenancy agreement shall not terminate or be terminated except in one of the following circumstances —
…
(b) in the case of a tenancy for a fixed term, where the lessor or tenant gives a notice of termination under section 70A and —
(i) the tenant delivers up possession of the premises on or after the day on which the term of the agreement expires in accordance with that section; or
(ii) a competent court, upon application by the lessor, terminates the agreement under section 72;
…
70A. Notice of termination by lessor or tenant at end of fixed term tenancy
(1)In this section –
agreement means a residential tenancy agreement that creates a tenancy for a fixed term;
notice means a notice of termination referred to in subsection (2);
possession day means the day specified in a notice as the day on which possession of the premises is to be delivered up by the tenant and has the meaning affected by subsection (6).
(2) Despite any other written law or a requirement under a contract, the term of a residential tenancy agreement does not end on the expiry day unless the lessor or tenant has given a notice of termination of the agreement to the other party specifying a day on which possession of the residential premises is to be delivered up by the tenant.
(3) The notice must be given not later than 30 days before the possession day.
(4) The possession day must not be a day earlier than the expiry day.
(5) If the possession day is later than the expiry day, then —
(a)the term of the agreement expires on the possession day, and not on the expiry day; and
(b)the terms of the agreement are to be taken, for all purposes, to be varied to that extent.
(6) If both the lessor and tenant give a notice to each other and the notices specify different possession days, then the day that is the earlier of the 2 days is to be taken to be the possession day.
(7) If —
(a) the day on which the term of the agreement is to expire under subsection (5)(a) is the possession day under a notice given by the lessor; and
(b) the tenant delivers up possession of the premises after the expiry day but before the possession day,
then the day on which the tenant delivers up possession of the premises is to be taken to be the possession day for the purposes of subsection (5).
…
72. Application for termination and order for possession in relation to fixed term agreements
(1A) In this section —
agreement has the meaning given in section 70A(1);
possession day has the meaning given in section 70A(1).
(1) Where a lessor or a tenant under an agreement gives notice of termination under section 70A and the tenant fails to deliver up possession of the premises on the possession day, the lessor may, within 30 days after the possession day, apply to a competent court for an order terminating the agreement and an order for possession of the premises.
(2) Subject to this section, a competent court shall, upon application under this section, make an order terminating the agreement and an order for possession of the premises.
(3) Notwithstanding subsection (2), except where the premises the subject of the agreement are the principal place of residence of the lessor, the court —
(a) may suspend the operation of orders under that subsection for a period not exceeding 30 days, if it is satisfied that it is desirable to do so having regard to the relative hardship that would be caused —
(i) to the lessor by suspending the orders; or
(ii) to the tenant by not suspending the orders;
and
(b) shall refuse to make the orders under that subsection where the term of the tenancy under the agreement is less than 90 days unless it is satisfied —
(i) that the lessor genuinely proposed, at the time that the lessor entered into the agreement, to use the premises after the expiration of the term for purposes inconsistent with the tenant continuing to occupy the premises; or
(ii) that the tenant of the tenant’s own initiative sought a tenancy of a term of less than 90 days.
(4) Subject to subsection (3)(a), where the court terminates a residential tenancy agreement and makes an order for possession of the premises under this section, it shall specify the day as from which the orders shall operate, being within 7 days after the day on which the orders are made.
(5) The Limitation Act 2005 does not apply to or in relation to an application under this section.
…
76C. Fixed term tenancies continued as periodic tenancies
(1)This section applies to a residential tenancy agreement that creates a tenancy for a fixed term unless the agreement is terminated before the expiry day.
(2)Subject to subsection (3), a residential tenancy agreement continues as a periodic tenancy after the expiry day on the same terms that applied immediately before the expiry day.
(3)A competent court may, upon application by the lessor or tenant, make such modification to the terms of the residential tenancy agreement as may be necessary for, or appropriate to, its continuance.

I note that Division 3 of Part V is headed 'Special provisions about terminating social housing tenancy agreements'. I will return to these provisions. For present purposes, it is sufficient to note that the parties proceeded on the basis that the houses in both of the matters:
1.were 'social housing premises';
2.had been let by the Housing Authority as a 'social housing provider'; and
3.had been let pursuant to a 'social housing tenancy agreement'.
(all terms as defined by s 71A of the RT Act).
No party contended that the provisions of Division 3 of Part V were directly applicable to either case.

Blanket v The Housing Authority

Appropriately, both parties referred extensively to Blanket v The Housing Authority[31] where Pritchard J (as she then was) considered if a decision of the Housing Authority to issue a notice of termination pursuant to s 64 of the RT Act was amenable to judicial review by two applications brought by Ms Blanket.
[31] Blanket v The Housing Authority [2014] WASC 409 (Blanket).
As may be observed with the benefit of the Court of Appeal's decision in Patole, it is perhaps not especially helpful to frame the relevant question as to whether the particular decision is amenable to judicial review.[32] For this reason, I have not embarked on answering the Housing Authority's proposed ancillary question.
[32] See especially Patole [12] - [13] (Quinlan CJ and Mitchell JA).
Section 64 provided that a lessor may give notice of termination of a residential tenancy agreement without specifying a ground.
The procedural history of Blanket was set out by Pritchard J.[33] Relevantly, for present purposes, Ms Blanket, a tenant of the Housing Authority, sought a review order pursuant to s 36 of the Magistrates Court Act 2004 (WA) in respect of orders made by the Magistrates Court terminating her lease following a s 64 termination notice. Ms Blanket also sought prerogative relief by way of a writ of prohibition to prevent the Housing Authority acting on the orders of the Magistrates Court.[34]
[33] Blanket [3] - [9].
[34] Blanket [9].
Her Honour dismissed both of those review applications.[35]
[35] Blanket [144].
Her Honour, in overview, concluded:
1.the decision to issue the s 64 notice made by the Housing Authority was made pursuant to its powers under the RT Act (and not from the lease with Ms Blanket);[36]
2.the decision was amenable to judicial review;[37]
3.the decision to end Ms Blanket's tenancy pursuant to s 64 of the RT Act 'had the potential to destroy or prejudice Ms Blanket's interest in an ongoing tenancy';[38]
4.for that reason, the presumption arose that procedural fairness was required in relation to the exercise of power to give the notice under s 64 of the RT Act;[39]
5.however, the RT Act clearly evinced an intention that the Housing Authority was not required to afford procedural fairness to a tenant when it proposed to issue a notice of termination under s 64 of the RT Act;[40] and
6.with some identified exceptions, the clear intention of the RT Act was that its provisions would apply in the same fashion irrespective of whether the owner was a private individual or corporation, or a person or agency acting on behalf of the State.[41]
[36] Blanket [62], [69].
[37] Blanket [77].
[38] Blanket [82].
[39] Blanket [82].
[40] Blanket [87], [93].
[41] Blanket [104].
Her Honour also dealt with what the Magistrates Court had to be satisfied of with regards to an application made under s 71 of the RT Act. Her Honour considered that provision as an 'important contextual consideration' in determining the question as to whether Parliament had excluded procedural fairness for decisions made under s 64 of the RT Act.[42]
[42] Blanket [95].
Her Honour set out the matters from s 71(2) of the RT Act on which the competent court had to be satisfied had been complied with.[43] Pritchard J stated that, effectively, a court under s 71(2)(a) of the RT Act was not required to be satisfied that procedural fairness had been afforded to the tenant.[44] However, her Honour noted the further matters on which the competent court had to be satisfied of pursuant to s 71(2)(b).[45]
[43] Blanket [97].
[44] Blanket [99].
[45] Blanket [98].
Her Honour's reasoning on s 71(2) of the RT Act is not directly applicable to any of the questions before this Court. That is because the section does not apply where a notice of termination has been given under s 70A, which is the case here. I will return to this.

Following the Blanket approach

There may be detected a different emphasis between the approach taken by Pritchard J in Blanket with that taken by the Court of Appeal in Patole.
For simplicity's sake, and to address the arguments which were specifically directed to Blanket, I will consider the reasoning in that case first.
The parties sought to rely on Blanket, but only as to part of Pritchard J's reasoning.
I will state my overall conclusions and then return to discuss the reasons behind them in more detail.
If I were to adopt the approach taken by Pritchard J in Blanket, I would find that both the Garlett and GT Termination Decisions were an exercise of statutory power which had the potential to destroy or prejudice Mr Garlett's and Ms GT's respective interests.
In my view, it would be an exercise of statutory power having regard to the provisions of the Housing Act which Mr Garlett's submissions identified and, or, it was an exercise of statutory power under the RT Act in the way identified by Pritchard J in Blanket.
That is, I do not accept the argument that the Housing Authority was, in making the Decisions, simply or purely exercising a contractual right.
I find that the presumption then arises that procedural fairness was required in relation to the exercise of the power to make the Decisions (to give a notice under s 70A of the RT Act). I find that, equally, the presumption arises that such statutory power would be exercised reasonably.
The question is then whether, as a matter of statutory construction, there was an excluding of the requirement of procedural fairness by the provisions of either the Housing Act or the RT Act.[46]
[46] How that question is framed from the authorities will be returned to below.
I find that the giving of a notice under s 70A without a reason is analogous with the Housing Authority being able to give a notice under s 64 of the RT Act.
By parity of reasoning with that adopted by Pritchard J, I find that statutory scheme did exclude, as a matter of construction, the requirement to accord procedural fairness in the making of the Decisions.
If I am correct about that, it follows in my view, that the obligation to exercise the power reasonably is also similarly excluded. It would be anomalous and unworkable if the obligation to accord procedural fairness was excluded by the statute, but not the obligation to act reasonably.
I now turn to explain my reasoning behind those conclusions in a little more detail.

Fixed term and periodic tenancy : the tenants' interests

In my view, the clear wording of s 76C(2) of the RT Act has the effect that unless some other act occurs, at the expiry of the fixed term, the tenancy agreement continues as a periodic tenancy. That is also the effect of s 70A(2).
Again, on the plain words of the RT Act, the effect of those sections will be avoided if a lessor gives a notice of termination under s 70A.
The clear effect of the RT Act is that the operation of the general law of contract is affected. The giving of the notice pursuant to s 70A does something different from that which would be the consequence of the expiry of the fixed term lease. The notice has the effect of preventing or avoiding the rolling over of the fixed term tenancy to become a periodic tenancy under the RT Act.
So, both the Garlett and the GT Termination Decisions had the effects of terminating the respective fixed term tenancies and of preventing a periodic tenancy arising under the RT Act.
That operation of the notice under s 70A in the context of the RT Act distinguishes this case from some of the other authorities where the court held that the action of the relevant body had done nothing more than would be the result of the contractual agreement in the lease. Care must be taken with the applicability of some of these cases, as they turned on different statutory regimes.
The Housing Authority submitted that:
[41]… at the end of the term of the tenancy, Mr Garlett's interest was confined to the lawful disposition of the residential tenancy agreement in accordance with the terms of the tenancy agreement and the RT Act. The interest in the land demised by the owner is for a fixed duration and any rights or interests that may be created thereafter is a matter for mutual agreement. It is submitted that such an interest is insufficient to attract a presumption of procedural fairness.[47]
[47] Housing Authority's submissions [41].
Consistently with Pritchard J, I do not accept that submission and would hold that the impact of terminating both fixed term tenancies and preventing periodic tenancies coming into force are sufficient to answer the description of a decision which may destroy or prejudice the tenants' interests.

Exercise of statutory power

As I have summarised above, Pritchard J took the view that the Housing Authority was exercising a statutory power and identified that as the powers under the RT Act. Mr Garlett and Ms GT relied, rather, on ss 12(b), 28 and 29, as quoted above, to submit that 'under those provisions' the Housing Authority was exercising a statutory power.
The Housing Authority sought to distinguish her Honour's decision in Blanket by submitting that, in that case, it had exercised a statutory power under s 64 of the RT Act. The Housing Authority submitted:
[32]In contrast with s 64(1), s 70A does not provide for the giving of a notice to terminate "under this section" in circumstances where it is an inherent and indispensable feature of a fixed term agreement that it will end on its expiry unless the parties mutually agree to continue their contractual relationship. Properly construed, s 70A assumes the existence of a valid and binding agreement for a fixed term, and does not seek to derogate from the parties' contractual bargain.[48]
[48] Housing Authority's submissions [32].
The Housing Authority relied (as it had in Blanket[49]) on the Tasmanian Full Court decision in King v Director of Housing[50] for the proposition that the giving of the Garlett and GT Termination Notices were not exercises of statutory power.
[49] Blanket [75].
[50] King v Director of Housing [2013] TASFC 9; (2013) 23 Tas R 353 (King).
Pritchard J distinguished King.[51] With great respect, I consider her Honour was correct to do so (and the Housing Authority in these applications did not seek to explain why her Honour was in error in doing so but simply relied again on King).
[51] Blanket [75] - [76].
The decision of the Tasmanian Full Court, to my reading, turned expressly on the meaning of a decision made 'under an enactment' within the relevant provisions of the Judicial Review Act 2000 (Tas).[52]
[52] The application of that legislation appears at [14] - [15] of the reasons.
Porter J held that the relevant decisions in that case were not reviewable under the relevant Tasmanian legislation;[53] but his Honour accepted that statutory definition of reviewable decisions was more limited than at general or common law.[54]
[53] King [65].
[54] King [65].
I do not consider that s 12(b) of the RT Act has the effect that, here relevantly, the Housing Authority was not exercising a statutory power.

Was procedural fairness excluded

The Housing Authority submits:
[49]… the Authority submits that, on its proper construction, the RT Act evinces Parliament's intention that the Authority is not required to afford procedural fairness to a tenant when it proposes to issue a termination notice under s 70A.[55]
…
[66]Having regard to the text, context and purpose, and recognising the importance of the principles of natural justice, it is submitted that the RT Act evinces an intention to exclude any presumption of procedural fairness in respect of a decision to give a notice to terminate a fixed term tenancy at the expiry of its term.[56]
[55] Housing Authority's submissions [49].
[56] Housing Authority's submissions [66].
Mr Garlett and Ms GT sought to distinguish this part of her Honour's reasoning in Blanket by simply pointing to that case as being about s 64, whereas these cases are about s 70A of the RT Act.[57]
[57] Mr Garlett's submissions filed 25 June 2024 [22].
That distinction, with respect, is not persuasive.
Mr Garlett and Ms GT relied heavily on the decision of Burgess v Director of Housing[58] which was decided shortly after Blanket. I will return to that case.
[58] Burgess v Director of Housing [2014] VSC 648 (Burgess).
Without setting out Pritchard J's reasoning in Blanket in full, a core proposition was that the notice under s 64 could be given without specifying a reason for the termination.[59] That, as may be seen from her Honour's reasons, was very significant in the analysis to the result that the requirement which otherwise would have existed to accord procedural fairness had been excluded by the statute.
[59] Blanket [88].
Pritchard J reasoned:
1.s 64 permitted an owner to give a notice without telling the tenant the reason, if any, for the notice;[60]
2.the Parliament, thus, had made it clear that the reason for termination was irrelevant;[61] and
3.there was no explanation as to why reasons would have to be given to the tenant as an incident of procedural fairness before the decision was made to issue the notice, but the notice could then be given without setting out any reason for doing so.[62]
[60] Blanket [88].
[61] Blanket [88].
[62] Blanket [92].
That reasoning seems to me to apply equally to a decision to give a notice under s 70A. I do not consider, with respect, that there is any material difference where a notice under s 70A of the RT Act can be given without a specifying reason.
Such a notice may readily be distinguished from, for example, a notice given under s 62 of the RT Act where the tenant has breached a term of the tenancy agreement and has not remedied that breach.
I mentioned Division 3 Part V of the RT Act above. In my view, it serves to reinforce the conclusions that Pritchard J reached about the statutory intention she discerned in the RT Act to exclude procedural fairness.
By s 71C of the RT Act, relevantly, the Housing Authority[63] could give notice of the termination of a social housing tenancy agreement to the tenant on a specified ground after an assessment carried out under s 71D.
[63] In this discussion I have referred to the Housing Authority whereas the provisions under discussion refer more generally to lessors under a social housing tenancy agreement.
Relevantly for present purposes, and by way of contrast, before giving notice of such a termination, the Housing Authority has to advise the tenant of its decision to do so, and that notice must contain particulars of the reasons why the tenant is no longer considered eligible to reside in the premises: s 71F(1) and (2)(a).
Section 71F(3) allows the tenant to apply to the Housing Authority for a review of the decision and to make representations in writing or orally as to why the agreement should not be terminated.
It is possible to argue that those provisions just recited provided for a more limited form of procedural fairness than a tenant is entitled to under Division 2 Part V, and in particular s 70A (on the assumption that the tenant was entitled to a more full form of procedural fairness).
However, on their face, the provisions from Division 3 Part V may also be read as the legislature providing some procedural fairness to a tenant where the Housing Authority is contemplating giving the particular notice for the particular reason. I think this is the better reading.
Division 3 of Part V was introduced by the Residential Tenancies Amendment Act 2011.[64]
[64] Act No: 060 of 2011 which was assented to on 14 December 2011 and came operative on and from 30 July 2012.
Both the Explanatory Memorandum and the second reading speech of the Minister are silent as to whether the legislature saw s 71F(3), for example, as a cutting down or as an expansion of the requirements of procedural fairness.
That amending Act also introduced s 75A into the RT Act[65] which empowered a competent court on an application by the Housing Authority, for example, under a social housing tenancy agreement to terminate the agreement if the court was satisfied of certain matters which, for present purposes, may be described as antisocial behaviour.
[65] In Division 4 of Part V of the RT Act.
Again, by way of contrast, after the application was made, the court had to be satisfied of certain matters before terminating the social housing tenancy agreement. That application and consideration by the court would, perforce, include the tenant being accorded procedural fairness in the court.
Mr Garlett and Ms GT submitted that since the decision in Blanket, the High Court had made plain the strength of the presumption in favour of procedural fairness and the clarity required in the relevant statute to exclude it.[66]
[66] See, for example, Mr Garlett's submissions filed 25 June 2024 [14] - [18].
With respect, I do not consider that the test Pritchard J applied[67] was relevantly different from the approach which may be discerned from the High Court authorities to which Mr Garlett and Ms GT referred.
[67] See, for example, Blanket [87].
As said above, Mr Garlett and Ms GT placed significant reliance upon Burgess.
In that case, the Director had issued Ms Burgess a notice to vacate rented premises and then had taken steps through the VCAT to obtain a warrant for possession. Ms Burgess, amongst other things, sought judicial review on the basis that she had not been accorded procedural fairness and the Director had failed to take into account mandatory, relevant considerations.[68]
[68] Burgess [151].
It must be noted, at the outset, that the Director in that case accepted that they were obliged to accord procedural fairness and Macaulay J accepted that assumption was correctly made.[69]
[69] Burgess [155].
The Court found that both decisions were affected by jurisdictional error and made a declaration accordingly.[70]
[70] Burgess [15] (Macaulay J).
Macaulay J stated the relevant principles to be applied in considering whether the Director did accord Ms Burgess procedural fairness and did so in terms that are consistent with those adopted by Pritchard J in Blanket.[71]
[71] Burgess [145].
The distinguishing feature in Burgess from that in Blanket is that the Director had issued the notice to vacate based on the reasons that the premises were being used for an illegal purpose or there was drug related conduct in the premises.[72] The distinguishing feature of it being notices given for a reason is made clear, in my view, by Macaulay J.[73]
[72] Burgess [33].
[73] Burgess [155] - [156], [159], [160].
In all of those circumstances, I find that Burgess is relevantly distinguishable from Blanket and, indeed, I do not see the two as being inconsistent.
For the above reasons, I consider that the RT Act excludes an obligation on the Housing Authority to accord procedural fairness in the making of the Decisions.
In my view, that reasoning and conclusion applies equally to dispose of the contention that the Decisions could be reviewed on the grounds of legal unreasonableness.

Patole v Child & Adolescent Health Service

The decision of the Court of Appeal in Patole was decided after the hearings in this matter, but the parties subsequently made written submissions on the case.
In Patole, the impugned decision was that of a public officer acting as delegate of a public authority to enter into an employment contract on behalf of the State.[74] The disappointed applicant for the contractual position sought judicial review of the decision on the basis that the decision infringed the rules of procedural fairness, including the bias rule.
[74] Patole [13] (Quinlan CJ and Mitchell JA); [67] (Vaughan JA).

Quinlan CJ and Mitchell JA stated the following principles:
1.in the case of statutory powers, jurisdictional error will occur where the public body does something which was not authorised by the empowering legislation or fails to do something required by the relevant legislation;[75]
2.the relevant inquiry is whether the decision has been made in breach of the express and implied conditions of conferral of the statutory decision-making authority that the decision lacks the legal effect which the statute attributes to the exercise of that authority;[76]
3.common law rules of statutory construction start with the assumption that the rules of procedural fairness condition the valid exercise of certain kinds of statutory power;[77]
4.however such a presumption may be displaced, and it is always necessary to construe the relevant statute to determine the limits of the statutory power under consideration in the particular case;[78]
5.this Court may enforce the legal limits of the non‑statutory powers of an executive government to enter into contracts in its judicial review jurisdiction;[79] and
6.an obligation to accord procedural fairness may condition a non‑statutory power of the executive government and that 'condition' may be found in statute or otherwise.[80]
[75] Patole [6].
[76] Patole [6].
[77] Patole [7].
[78] Patole [7].
[79] Patole [9].
[80] Patole [9].
It was held that the relevant contract of employment was entered into by the exercise of a non-statutory executive power of the State.[81]
[81] Patole [16], [19], [23] (Quinlan CJ and Mitchell JA); [76] - [77] (Vaughan JA).
The plurality decided that the outcome of the case was not dependent on whether the State's power to enter into the contract was statutory or non‑statutory,[82] as in either case there was not a statutory (or otherwise) condition on the valid exercise of the power which compelled compliance with the rules of procedural fairness.[83]
[82] Patole [25] (Quinlan CJ and Mitchell JA).
[83] Patole [25] (Quinlan CJ and Mitchell JA).
The non-statutory executive power of the State allowed the entering into contracts of employment with persons to perform ordinary governmental functions, including the provision of health services.[84]
[84] Patole [16] (Quinlan CJ and Mitchell JA); [119] (Vaughan JA).
By a process of statutory construction, the plurality concluded that the relevant legislation did not intend to condition the entry into the relevant employment contract with an obligation to accord procedural fairness;[85] rather the relevant legislation provided for other consequences of such a breach.
[85] Patole [39] - [41] (Quinlan CJ and Mitchell JA); [156] - [161] (Vaughan JA).
Following a statement that this Court has entrenched supervisory jurisdiction in enforcing the limits on the exercise of State executive power,[86] the plurality stated that:
…it makes little sense to refer to the executive powers of the State government and State public authorities as 'not judicially reviewable'.[87]
[86] Patole [11].
[87] Patole [12].
The plurality said that the decision in that case was 'amenable to judicial review' in the sense that the Court could determine whether the legal limits on the power to enter into the impugned contract had been transgressed.[88]
[88] Patole [13].

Following the approach in Patole

I apprehend from the reasoning of the plurality in Patole that less significance was to be attached to framing the enquiry as to whether the Housing Authority as lessor was exercising a statutory or non‑statutory power in deciding to give the notices under s 70A of the RT Act.
Rather, the starting point was to:
… construe the relevant statute to determine the limits of the statutory power under consideration in the particular case.[89]
… [and]
The court's judicial review jurisdiction also extends to enforcing legal limits on the non-statutory powers of an executive government which may be imposed by statute.[90]
[89] Patole [7].
[90] Patole [9].
In my view, the reasoning I have set out above as to the construction of the RT Act leads equally to the conclusion that the Decisions were not conditioned in the way contended for by Mr Garlett and Ms GT.

Disposition of Garlett Question 1

For the reasons set out above, I would answer the first question 'no'.
While much of the above discussion has focused on whether the Housing Authority must accord the tenant here procedural fairness, that discussion, in my view, necessarily extends to provide the same answer to Question 1(b) as I have found for Question 1(a).
Further, by parity of reasoning, I would dismiss Ms GT's amended application as to the GT Termination Decision.

The GT Extension Decision

As I understand Ms GT's propositions, she asserts:
1.it was beyond her and the Housing Authority's powers or legal capacity to agree to renew her First GT Agreement;[91]
2.that is because the RT Act provided an exclusive code and the consensual extension or renewal of a fixed term lease is not known to the Act;[92]
3.consequently, the First GT Agreement became a periodic tenancy from the date of its (original) expiry (namely 25 July 2023);[93]
4.that periodic tenancy was not brought to an end in a way recognised by the RT Act;[94] and
5.the s 70A notice - the GT Termination Notice - was not legally effective to bring the periodic tenancy to an end.[95]
[91] Ms GT's submissions filed 28 June 2024 [11] - [13].
[92] Ms GT's submissions filed 28 June 2024 [13].
[93] Ms GT's submissions filed 28 June 2024 [14].
[94] Ms GT's submissions filed 28 June 2024 [15].
[95] Ms GT's submissions filed 28 June 2024 [15].
In my view, this argument falters at the first proposition.
I consider that Ms GT and the Housing Authority could, and did, extend or renew the First GT Agreement. And, I find consequently, that there was an effective Second GT Agreement for a fixed term expiring on 25 January 2024.
In putting her submission, Ms GT relied on four steps:[96]
1.the First GT Agreement was for a fixed term;
2.by s 76C, unless the First GT Agreement was terminated before its expiry date it became a periodic tenancy;
3.the First GT Agreement was not terminated before its expiry date on 25 July 2023 and so the tenancy became periodic; and
4.the purported extension of the First GT Agreement 'into' the Second GT Agreement was unsupported by any statutory or contractual power.[97]
[96] ts 71.
[97] ts 71.
The fourth step relies on the proposition that under the RT Act the only way to 'extend' a tenancy, including a fixed term tenancy, was pursuant to s 20(f) of the RT Act.[98] This provision, counsel for Ms GT submitted, was the legislature expressly turning its mind to the question of extensions and limiting the 'relevant extension power to a competent court'.[99]
[98] ts 72.
[99] ts 73 - 74.
Ms GT also submitted that any 'extension agreement' would be inconsistent with the provisions of the RT Act and would infringe s 82(1)(a) of the RT Act.[100]
[100] ts 79.
To accept Ms GT's argument on this point requires an acceptance that parties to a fixed term tenancy (whether private or public) could not extend the tenancy before its expiry by consent.[101] I do not accept that submission.
[101] ts 78.
With respect, on this aspect, I consider that the submission misapprehends the scope of the RT Act. It is undeniably the case that the RT Act significantly affects contracts for residential tenancies. And, where the statutory provisions apply, it interferes with the parties' ability to contract 'freely'.
However, having said that, I am unable to discern an intention in the provisions (including those referred to by Ms GT) to the effect that a lessor and lessee cannot agree to a extend fixed term tenancy beyond the original expiry date if that agreement is made before that original expiry date.
If I am correct about that, then there is no basis to assert that the Second GT Agreement did not have legal force.
That appears to me to have two consequences.
The first is that the challenge of the GT Extension Decision, to the extent that it raises a failure to accord Ms GT procedural fairness, is rendered inutile.
That is because the Second GT Agreement has, consensually, taken legal effect over the potential periodic tenancy that would have occurred had the Second GT Agreement not been entered into.
The entry into the Second GT Agreement, in my view, practically takes over the effect of the GT Extension Decision.
Secondly, at the time of the GT Termination Decision, there was a fixed term tenancy between the Housing Authority and Ms GT which was able to be the subject of a s 70A notice.
If that is correct, then the considerations and reasoning which led me to conclude that the Housing Authority did not have to accord Mr Garlett procedural fairness, or to act reasonably, in the Garlett Termination Decision, would apply equally to conclude that the Housing Authority did not have to accord procedural fairness, or to act reasonably, to Ms GT in making the GT Termination Decision.
In those circumstances, I do not consider that I should express any views as to the reasonableness of the way in which the Housing Authority acted towards Ms GT in making the GT Termination Decision.

Garlett Question 2

The second question of law is, in my view, essentially (if not expressly) whether the Magistrates Court can review the validity of a notice under s 70A of the RT Act by reference to the considerations agitated by Question 1. In short, can the Magistrates Court conduct a 'collateral review'[102] of, or entertain a 'collateral challenge'[103] to, the Garlett Termination Notice based on those Question 1 matters.
[102] As used, for example, in Director of Housing v Sudi [2011] VSCA 266; (2011) 33 VR 559 (Sudi).
[103] As used in Australian Crime Commission v Marrapodi [2012] WASCA 103, (2012) 42 WAR 351 (Marrapodi) [138] (Allanson J).
As may be seen, I have phrased this second question in more narrow terms than it was expressed by the relevant reserved question. I will return to that below.
Weinberg JA in Director of Housing vSudi described 'collateral review' as follows:
The term 'collateral review',[104] when used in relation to an attack upon the validity of government action, normally means a challenge to such validity that is made not by way of administrative review, but in response to a proceeding said to be jurisdictionally flawed. Collateral review takes place in proceedings that are not designed for handling them, and before courts or tribunals that may not have experience, or expertise, in dealing with issues of public law.[105]
…
… It is to be contrasted with judicial review, whereby the validity of government action is impugned through an application for prerogative relief, or the equivalent of such relief … .[106]
[104] Weinberg JA saw the expressions 'collateral challenge' or 'collateral attack' as being interchangeable: see footnote 162 to [221].
[105] Sudi [221]; see also Ousley v The Queen (1997) 192 CLR 69, 98 - 99 (Ousley) (McHugh J).
[106] Sudi [222].
As has been said:
… in most collateral challenges, the allegation of a jurisdictional flaw arises in a matter not designed specifically for handling it, nor necessarily focusing on that issue or involving the directly affected parties, and in a court or tribunal which may not have much administrative law experience.[107]
[107] Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (7th edition) [13.250].
It is plain, at least in this State, that if a valid administrative act is an element of a criminal offence, that decision may be challenged in the course of the prosecution, and separate judicial review proceedings are not required: Australian Crime Commission v Marrapodi;[108] Selby v Pennings.[109] That, obviously, is not this case.
[108] Marrapodi [46] (McLure P), [118], [127], [137] ‑ [138] (Allanson J).
[109] Selby v Pennings (1998) 19 WAR 520, 532, 535 - 536 (Ipp J, Owen J agreeing). See also McHugh J's citation with approval of Director of Public Prosecutions v Head [1959] AC 83 in Ousley, 100.
As I understood it, Mr Garlett says he was not seeking the Magistrates Court to engage in any form of judicial review,[110] but rather was seeking 'only' the dismissal of the Housing Authority's application because of the 'unlawfulness' of the Authority's process.[111]
[110] ts 54.
[111] ts 53.
With respect, the niceties of the way that is put makes no difference to the substance of what is being contended for. In my view, Mr Garlett is, as a matter of substance, contending for the Magistrates Court to conduct a review of the lawfulness of the Garlett Termination Decision which might otherwise be the subject of separate judicial review proceedings in, for example, this Court.
The most important consideration in the resolution of this second question of law is the statute and whether it precludes collateral review or challenge. As Warren CJ said in Sudi:
The extent, if any, to which an inferior court can undertake collateral review of an administrative decision is ultimately a matter of construction of the statutory provisions conferring jurisdiction and functions on the court, …[112]
[112] Sudi [28].
In the above discussion of Blanket, I referred to Pritchard J's reasoning as to what a competent court had to be satisfied of under s 71(2) of the RT Act following the giving of a s 64 notice. Her Honour contrasted what a competent court had to be satisfied of under s 71(2)(a) with that under s 71(2)(b).
Pritchard J concluded that the reason for giving a notice under s 64 was irrelevant to the competent court's inquiry under s 71(2) of the RT Act.[113] On her reasoning, if it was irrelevant to the Court's consideration, then there appeared to be no scope for a collateral challenge to the s 64 notice.
[113] Blanket [99].
By parity of reasoning, and in contrast with other provisions such as ss 62 and 75A, s 72(2) mandates no matters upon which the competent court must be satisfied following the giving of a notice under s 70A of the RT Act. That is, there is no express legislative provision requiring the competent court to go behind the notice under s 70A.
I note the mandatory language used in s 72(2) of the RT Act: the competent court shall, upon application, make an order terminating the agreement and an order for possession of the premises. With respect, I agree with Maxwell P's observations that such 'imperative' language strongly suggests the exclusion of collateral review.[114]
[114] Sudi [75] - [76], [78].
As the parties in these applications identified:
1.to allow a collateral review has disadvantages which include such a review occurring before a court or tribunal which may be ill‑equipped to deal with such a matter;[115] but
2.to allow an inferior court or tribunal to undertake a collateral review avoids fragmentation of the proceedings[116] and assists in the less expensive disposition of them.
[115] Sudi [35] (Warren CJ), [248] (Weinberg JA). See also [75], [80] (Maxwell P).
[116] Sudi [247].
Allowing or denying collateral challenge will have one of these consequences which makes it difficult to discern a clear legislative intention from these considerations alone.
Mr Garlett prays in aid s 12A(1) of the RT Act to the effect that the 'defence' he wishes to run in the Magistrates Court is part of the defined 'prescribed dispute' and the Magistrates Court has exclusive jurisdiction to hear and determine the matter.
The definition of 'prescribed dispute' in s 12 leads, in my view, to a circularity in Mr Garlett's submissions. If the reasoning I have adopted from the other provisions of the RT Act is correct, then Mr Garlett's 'defence' could not be 'the subject of an application under this Act' and the matter would not be a 'prescribed dispute' and, so, not within the exclusive jurisdiction of the Magistrates Court.
Further, Mr Garlett's submission, if accepted, would appear to have the consequence that, for example in Ms GT's matter, this Court could not hear her application on the GT Termination Decision.
I do not consider, then, that the Magistrates Court has exclusive or other jurisdiction to hear and determine Mr Garlett's defence by reason of s 12A of the RT Act.
I have not found it necessary to consider whether, if accepted, Mr Garlett's submission as to the effect of s 12A would give rise to 'constitutional invalidity' as asserted by the Housing Authority.[117]
[117] Housing Authority's submissions [82].
Further, I consider that the authorities support the conclusion I have reached.
Ousley[118] was a criminal matter in which the accused objected to the admissibility of evidence recorded by listening devices by challenging the validity of the warrants which had been issued. The challenge to the warrants was made in the course of the criminal proceeding before the trial judge.
[118] Ousley. Encouragingly, Aronson, Groves and Weeks in Judicial Review of Administrative Action and Government Liability (7th edition) [13.280] said: 'Ousley is not an easy read'.
The appellant in Ousley asserted that the warrants, on their face, did not refer to each of the matters 'required' by the statute under which they were issued. The arguments were put essentially by reference to the face of the warrants and a comparison with the requirements of the statute.
The findings in Ousley can be read as being limited by the scope of the appellant's challenge to the warrants which was essentially limited to the validity on their face when compared with the requirements of the statute. However, as will be seen, Ousley has been read as imposing broader restrictions on collateral challenge to an administrative act and, in effect, limiting it to facial invalidity.
The trial judge decided that he had no jurisdiction to determine the validity of the warrants. The trial judge was concerned that the warrants, having been issued by Supreme Court judges were judicial acts, rather than administrative acts. The High Court held that the warrants were administrative acts.
As has been said of the decision in Ousley:
Toohey, Gaudron and Gummow JJ limited collateral challenge to those cases in which the jurisdictional error appeared on the face of the warrant, and no subsequent High Court decision has explicitly disowned that position. McHugh J would have allowed the accused to use any jurisdictional grounds, while Kirby J left the point open.[119] (citations omitted)
[119] Aronson, Groves and Weeks Judicial Review of Administrative Action and Government Liability (7th edition) [13.280].
Toohey J took the view that there could be a collateral review of the warrant 'on its face'.[120] His Honour considered the statutory requirements as to what must appear on the face of the warrant and held that the warrants did meet those requirements.[121]
[120] Ousley, 80.
[121] Ousley, 84.
His Honour concluded that:
The issuing of each warrant was an administrative act open to collateral review, limited to the validity of the warrant on its face … [and each warrant] met the requirements of the Act as to what must appear, and … the warrant was valid.[122]
[122] Ousley, 85.
Gaudron J, after a process of statutory construction, concluded that the warrants were invalid on their face as they did not state the satisfaction as to both matters her Honour considered should have been specified by the statute.[123]
[123] Ousley, 95.
McHugh J held that a warrant issued under the statute was open to collateral challenge in the criminal trial.[124] His Honour accepted that collateral challenges could be made on grounds 'such as addressing the wrong issue' and 'bad faith and impropriety'.[125] As noted, by this his Honour would have allowed wider challenges.
[124] Ousley, 102, 103, 105.
[125] Ousley, 104.
His Honour held that the warrants were valid under the relevant legislation,[126] and the matters required from the statute appeared on the warrant.[127]
[126] Ousley, 116.
[127] Ousley, 132.

Gummow J saw the matter of statutory interpretation and whether the warrants were authorised under the legislation.[128]
[128] Ousley, 118.
As Gummow J expressed it:
… the present litigation does not involve any application for administrative review. … In order to determine the admissibility of evidence it was necessary to decide whether the use of the listening devices had been illegal. That, in turn, required consideration of compliance with the terms of … the Act. That consideration was mandatory and was distinct from a consideration of the nature or sufficiency of materials upon which the issuing judge based the grant of the warrants. Arguments based on the 'legal propriety' of a warrant may be tested in separate proceedings for judicial review.[129]
[129] Ousley, 127 (citations omitted).
Gummow J cited with approval the proposition that the admissibility of the evidence obtained through the use of a listening device depended on the existence of a warrant rather than the sufficiency of the grounds for granting it.[130]
[130] Gummow J was citing from the judgment of Mason CJ and Toohey J in Murphy v The Crown (1989) 167 CLR 94 105 (Murphy), in Ousley, 131.
Gummow J held that the trial judge was required to determine whether the warrants were regularly granted under the statute by reference, it appears, to their face and stated that:
… the warrants were otherwise to be taken as effective until set aside in proceedings for judicial review.[131]
[131] Gummow J was citing from the judgment of Mason CJ and Toohey J in Murphy, 105 in Ousley, 131.
As noted, Ousley has been read as restricting collateral challenge to invalidity on the face of an administrative instrument.
In Sudi,[132] Weinberg JA took the view that Ousley placed significant constraints on the grounds available for collateral review,[133] and that only challenges brought on the basis of something akin to 'facial' or 'patent' invalidity were permissible.[134]
[132] Sudi.
[133] Sudi [238], [244].
[134] Sudi [261].
In the broad, the question in Sudi was whether the Victorian Civil and Administrative Tribunal (VCAT) had power to conduct what would have amounted to a judicial review of the lawfulness of a decision of an officer of the Director to commence proceedings in VCAT seeking the possession of public housing from the tenant, Mr Sudi.
The Court of Appeal unanimously held as a matter of statutory construction that such a collateral attack on the proceeding could not be brought in VCAT.[135]
[135] Sudi [43], [86], [264].
Weinberg JA in a relevantly analogous context to the present, in my view, held that VCAT's powers (and 'the powers of the courts') to engage in some form of collateral review were confined by the decision in Ousley to something akin to facial or patent invalidity.[136]
[136] Sudi [261].

Disposition of Garlett Question 2

Some authorities have dealt with the question of whether there can be collateral review or challenge at the level of discretion.[137] To be clear, I am not answering this question on that basis.
[137] See, for example, Jacobs v OneSteel Manufacturing Pty Ltd [2006] SASC 32; (2006) 93 SASR 568 [93] (Besanko J).
Rather, I find that the RT Act excluded collateral review or challenge on the grounds sought to be agitated in Question 1 as a matter of statutory intendment.
I do not wish to be taken as excluding the possibility that the Magistrates Court can 'review' a s 70A notice on the basis of facial or patent invalidity in line with my understanding of Ousley and Weinberg JA's judgment in Sudi.
I have not answered Question 2 as framed, as I consider the question is too wide.
But, on the basis I have set out above, I would answer an amended Question 2 'no'.

Final observations

As will be seen from my reasons above, I have found against Mr Garlett and Ms GT because the Housing Authority chose to terminate via a pathway which did not require the giving of a reason to do so. 'No grounds terminations' of residential tenancies are, it may be accepted, contentious.[138]
[138] See Parliamentary Research Service (NSW) Research paper: 2024-05 'Residential tenancy law reforms: no grounds evictions'.
I am not making observations from here as to the position of a private lessor in the private rental market. My observations are rather confined to the Housing Authority providing social housing.
The Housing Authority, here, is a social housing provider of social housing premises to people who, it may be inferred, are among the more vulnerable and powerless in our community.
In some important respects, the RT Act operates in ways which might be thought to be relevantly anomalous.
Where, for example, the Housing Authority wishes to terminate a tenancy for a reason or on the basis that the tenant is no longer eligible for social housing, it must engage with the tenant. The tenant then has an opportunity to make representations and influence the decision to be made by the Housing Authority which will have, one may infer in most cases, profound consequences for the tenant.
One may readily infer that the legislature considers that those important decisions will be better made by the Housing Authority after that engagement.
Further, the RT Act provides that the tenant can challenge such decisions in the course of proceedings in the Magistrates Court and that there be a process where, again, the tenant can be heard on matters which are critical to them.
However, the RT Act allows the Housing Authority, if I am correct, to not follow such procedures, or any reviewable process, if it chooses not to nominate a reason for the termination.
The anomaly, one may think, lies in providing pathways for the Housing Authority to terminate tenancies of social housing for no reason which are easier than to terminate for a reason.
The question which obviously arises is whether the legislature has made provision for these pathways to terminate tenancies fully appreciating the anomaly. And, with respect, understanding that like in most human endeavours the Housing Authority may well be predisposed to taking the easier, less convoluted approach to terminating tenancies.
The anomalous provisions give rise to the rhetorical question of why the Housing Authority would seek to go through the more 'difficult' or involved processes of terminating for a reason when it could, rather simply, terminate on no grounds.
It cannot be seriously doubted that the provision of social housing to vulnerable and powerless people is of real significance and importance, not just to those people, but to the community more generally.
Many people in western societies will be familiar with Maslow's Hierarchy of Needs theory. The base or first level is comprised of what might be stated to be the most basic needs for survival which include shelter.
Adequate housing is also often, now, referred to as a human right.
To mention those matters is not to seek to engage in an analysis beyond this Court's competence, but rather to note that, in my view, the community, broadly, would accept that adequate and affordable housing is not a luxury in Western Australia in 2025.
Social housing is, it must be accepted, a limited social resource.
The question is whether it can have been intended that it should be, effectively, easier for the Housing Authority to terminate a tenancy for no reason, than if it had a reason. And, whether the Housing Authority is not required to engage with a tenant who is likely to be vulnerable and powerless before the termination of their tenancy where it may be confidently assumed that they are to be deprived of a scarce, essential public resource.

Disposition

I will hear the parties, as needs be, as to the formulation of final orders.

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
17 APRIL 2025