Housing Authority v Garlett

Case [2025] WASC 125

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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:

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

Housing Authority v Garlett : factual background

  1. This application concerns a residential tenancy dispute between the applicant in CIV 1354 as lessor (Housing Authority) and the respondent as tenant (Mr Garlett).

  2. On 21 July 2022, the Housing Authority and Mr Garlett entered into a fixed term tenancy agreement (Garlett Agreement)…

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Details
AGLC
Housing Authority v Garlett [2025] WASC 125
Case
[2025] WASC 125
Decision Date

CaseChat Overview and Summary

The Housing Authority brought an application for judicial review against Ms Garlett, a tenant, challenging the court's jurisdiction to review decisions made by the Housing Authority under the Residential Tenancies Act 1987 (WA). The primary dispute revolves around the Housing Authority's decision to terminate Ms Garlett's fixed-term tenancy and the subsequent issuance of a termination notice. The case was heard and determined by the Supreme Court of Western Australia.

The central legal issues addressed by the court were whether the Housing Authority's decision to terminate the tenancy was subject to judicial review, the extent of procedural fairness required before issuing a termination notice, and the circumstances under which such a notice could be collaterally challenged in the Magistrates Court. Additionally, the court had to decide whether the questions of law reserved under section 25 of the Residential Tenancies Act 1987 (WA) were properly before the court, and if so, how they should be answered.

The court held that the decisions made by the Housing Authority to terminate the tenancy and issue a termination notice were not amenable to judicial review as they were primarily administrative in nature. The court further determined that procedural fairness was not a prerequisite for issuing a termination notice under section 70A of the Act, and that such a notice could not be collaterally challenged in the Magistrates Court. The court answered the reserved questions of law, concluding that the authority to terminate a tenancy and issue a notice of termination was exercised reasonably and in accordance with the relevant statutory provisions.

The Supreme Court dismissed the application for judicial review, holding that the Housing Authority's decisions were not subject to judicial review and that the procedural fairness requirements did not apply in this context. The court further ruled that the notice of termination was validly issued and could not be collaterally challenged in the Magistrates Court. The proceedings for possession of the house were to remain on hold pending the resolution of the judicial review application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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