GARLETT -v- HOUSING AUTHORITY [2026] WASCA 102

[2026] WASCA 102 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : GARLETT -v- HOUSING AUTHORITY [2026] WASCA 102 CORAM : MITCHELL JA ARCHER JA SEAWARD JA HEARD : 13 MAY 2026 DELIVERED : 24 JULY 2026 FILE NO/S : CACV 65 of 2025 BETWEEN : BARRY GARLETT Appellant AND HOUSING AUTHORITY Respondent FILE NO/S : CACV 54 of 2025 BETWEEN : BARRY GARLETT Appellant AND HOUSING AUTHORITY Respondent -- 1 of 49 -- [2026] WASCA 102 Page 2 ON APPEAL FROM: Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA Coram : HOWARD J Citation : HOUSING AUTHORITY -v- GARLETT [2025] WASC 125 File Number : CIV 1354 of 2024 Catchwords: Termination notice issued by Housing Authority in relation to fixed term residential tenancy agreement - Whether the power to issue the notice was conditioned by a requirement that the Authority afford procedural fairness or by a requirement that the decision be legally reasonable - Questions of law stated by Magistrates Court to Supreme Court - Whether the primary judge had the power to remit a question to the Magistrates Court for amendment Legislation: Housing Act 1980 (WA) Residential Tenancies Act 1987 (WA), s 70A Result: Appeal dismissed Category: A Representation: CACV 65 of 2025 Counsel: Appellant : M L L Albert & H Hofmann Respondent : I A Repper & A K Miller -- 2 of 49 -- [2026] WASCA 102 Page 3 Solicitors: Appellant : Circle Green Community Legal Respondent : State Solicitor's Office (WA) CACV 54 of 2025 Counsel: Appellant : M L L Albert & H Hofmann Respondent : I A Repper & A K Miller Solicitors: Appellant : Circle Green Community Legal Respondent : State Solicitor's Office (WA) Case(s) referred to in decision(s): Badari v Minister for Territory Families and Urban Housing [2025] HCA 47; (2025) 100 ALJR 30 Disorganized Developments Pty Ltd v The State of South Australia [2023] HCA 22; (2023) 280 CLR 515 Durney v Unison Housing Ltd [2019] VSC 6; (2019) 57 VR 158 Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 Khuu & Lee Pty Ltd v Corporation of the City of Adelaide [2011] SASCFC 70; (2011) 110 SASR 235 King v Director of Housing [2013] TASFC 9; (2013) 23 Tas R 353 King v Ombudsman [2020] SASCFC 90; (2020) 137 SASR 18 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 Mallard v Homes Victoria [2025] VSCA 339 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Munupi Wilderness Lodge Pty Ltd v Executive Director of Township Leasing [2022] FCA 216 Narrier v Martin (SM) (Unreported, WASC, Library No 940635, 28 October 1994) Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69 Patole v Child & Adolescent Health Service [2024] WASCA 126 -- 3 of 49 -- [2026] WASCA 102 Page 4 Puttick v The State of Western Australia [2026] WASCA 52 X v McAllister [2021] WASCA 3; (2021) 57 WAR 187 -- 4 of 49 -- [2026] WASCA 102 Page 5 TABLE OF CONTENTS Overview .................................................................................................................................... 6 Grounds of appeal ....................................................................................................................... 8 Grounds of notice of contention ................................................................................................. 9 The issues ................................................................................................................................... 9 Agreed facts .............................................................................................................................. 11 Preliminary issues ..................................................................................................................... 11 Reserving questions of law ................................................................................................... 11 Competency of appeal .......................................................................................................... 13 Are there implied conditions on the Authority's power to issue a termination notice under s 70A? (grounds 1 and 2) .......................................................................................................... 14 The legislation ...................................................................................................................... 15 The Housing Act 1980 (WA) ........................................................................................... 15 The Residential Tenancies Act ......................................................................................... 16 What is the source of the Authority's power to issue a termination notice under s 70A? .... 23 Section 70A is not impliedly conditioned ............................................................................ 25 Is the Authority required to afford procedural fairness before deciding to issue a termination notice under s 70A? (ground 1) ......................................................................... 27 Cases relied on by Mr Garlett ........................................................................................... 32 Cases involving commercial powers ................................................................................ 35 Conclusion - the Authority is not required to afford procedural fairness ......................... 38 Must a decision to issue a termination notice be legally reasonable? (ground 2) ................ 39 If there are not implied conditions, is s 70A invalid? (ground 3) ............................................. 41 The jurisdiction of the Magistrates Court (grounds 6 and 7) ................................................... 41 Did the primary judge have power under O 31 r 8(4) to send a question back to the Magistrates Court for amendment? (ground 4) ....................................................................... 46 Did the amended question arise? (ground 5) ............................................................................ 47 Notice of contention ................................................................................................................. 48 Did the primary judge err in finding that a presumption arises? (Contention ground 1) ..... 48 Did the primary judge err in finding that the decision could prejudice Mr Garlett's interests? (Contention ground 2) .......................................................................................................... 48 Conclusion and orders .............................................................................................................. 49 -- 5 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 6 JUDGMENT OF THE COURT: Overview 1 On 21 July 2022, Barry Garlett and the Housing Authority entered into a residential tenancy agreement in respect of an apartment in Perth. The agreement was for a fixed term commencing on 16 August 2022 and expiring on 15 August 2023. It was an express term of the agreement that the agreement could be ended by giving written notice of termination, if either the lessor or tenant did not want to renew the agreement. 2 On 14 July 2023, the Authority gave, or purported to give, Mr Garlett a notice of termination requiring him to deliver up vacant possession of the apartment on 24 August 2023. 3 Mr Garlett failed to deliver up vacant possession of the apartment on 24 August 2023, and remains in possession of the apartment. 4 The Authority commenced proceedings in the Magistrates Court, seeking an order terminating the agreement and an order for possession of the apartment under s 72 of the Residential Tenancies Act 1987 (WA). Section 72(1) relevantly provides that, where a lessor gives notice of termination under s 70A and the tenant fails to deliver up possession, the lessor may apply to the Magistrates Court for an order terminating the agreement and an order for possession of the premises. By s 72(2), where such an application is made, the Magistrates Court is required to make those orders (subject to an exception not relevant here1), although it may suspend the operation of the orders for a short period in some cases. 5 The parties disagreed as to whether the Authority's power to issue a termination notice was conditioned by implied administrative law requirements of procedural fairness and legal reasonableness. They also disagreed as to whether Mr Garlett could challenge the validity of the termination notice in the Magistrates Court proceedings on the ground that the Authority had breached the alleged implied limits. In an attempt to resolve these disagreements, the learned magistrate referred the following questions of law to the Supreme Court: 1 The exception is when the term of the tenancy was less than 90 days. In such cases, the Magistrates Court must refuse to make those orders unless the premises are the lessor's principal place of residence or it is satisfied of one of two circumstances. -- 6 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 7 1. For a termination notice issued under section 70A of the Residential Tenancies Act 1987 (WA) … 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 [Residential Tenancies 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 [Residential Tenancies Act]? 6 After a hearing before the learned primary judge Howard J,2 his Honour published reasons in which he said that he would have answered 'no' to question 1, but that question 2 was framed too widely (April 2025 Reasons).3 7 After hearing from the parties as to what orders should be made as a result of the published reasons, the learned primary judge ordered that question 2 be referred back to the Magistrates Court for amendment (Amendment Decision) to read as follows:4 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 [Residential Tenancies Act], by reference to the considerations agitated by Question 1? 8 The learned primary judge said that, if question 2 was amended in those terms and referred back to the Supreme Court, his answer to it would be 'no'. 9 The learned magistrate amended question 2 in the terms ordered by the primary judge and referred it back to the Supreme Court. As foreshadowed, the learned primary judge then made orders answering 'no' to both questions (Answer Decision).5 2 The hearing also dealt with a judicial review application for another tenant known as GT. 3 Housing Authority v Garlett [2025] WASC 125. 4 Housing Authority v Garlett [2025] WASC 125 (S) (Amendment Decision). 5 Orders of Howard J dated 29 July 2025 (Answer Decision). -- 7 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 8 10 Mr Garlett appeals against the Amendment Decision (CACV 54 of 2025) and the Answer Decision (CACV 65 of 2025). The two appeals have been consolidated. The Authority has filed a notice of contention. Grounds of appeal 11 The grounds of appeal are as follows: 1. The primary judge erred in law in answering Question 1(a) reserved to it by the Magistrates Court under s 25 of the Residential Tenancies Act 1987 (WA) - For a termination notice issued under section 70A of the Residential Tenancies Act 1987 (WA) ... 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 - with 'no' because the applicable statutory scheme is conditioned by a requirement to afford procedural fairness. 2. The primary judge erred in law in answering Question 1(b) reserved to it by the Magistrates Court under s 25 of the Residential Tenancies Act 1987 (WA) - For a termination notice issued under section 70A of the Residential Tenancies Act 1987 (WA) … to be valid, is the Housing Authority required to … (b) make a decision to issue such a notice that is legally reasonable - with 'no' because the applicable statutory scheme requires that the powers be exercised in a way that is legally reasonable. 3. The primary judge erred in law when construing the Housing Act 1980 (WA) and/or the Residential Tenancies Act 1987 (WA) in answering Question 1 reserved to it by the Magistrates Court under s 25 of the Residential Tenancies Act 1987 (WA) (i) in failing to have regard to the Commonwealth Constitution and/or (ii) by adopting a construction which would lead to constitutional invalidity because the applicable statutory scheme would be beyond the legislative competence of the Western Australian Parliament under the Commonwealth Constitution. 4. The primary judge erred in law in holding that the Supreme Court had power under order 31 r 8(4) of the Supreme Court Rules 1971 (WA) to send Question 2 reserved to the Supreme Court by the Magistrates Court under s 25 of the Residential Tenancies Act 1987 (WA) back to be amended. 5. The primary judge erred in law when answering the amended Question 2 - 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 [Residential Tenancies Act], by reference to the considerations -- 8 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 9 agitated by Question 1 - because the question as amended did not arise for consideration in the present proceeding. 6. The primary judge erred in law in answering the amended Question 2 (set out in ground 5) with 'no' because the Magistrates Court has such legal capacity. 7. If grounds 1 or 2 (each separately or together with ground 3) are upheld, the primary judge erred in law by failing to answer and/or to answer affirmatively Question 2 - If the answer to question 1 is yes, is the determination of the validity of a termination notice under section 70A of the [Residential Tenancies Act] within the power or jurisdiction of the Magistrates Court, in proceedings for an order terminating the agreement an order for possession of the premises under section 72 of the [Residential Tenancies Act]. Grounds of notice of contention 12 The Authority contends that the primary judge's decision that reserved question 1 should be answered 'no' should be upheld on the following grounds: 1. The primary judge erred in law at [April 2025 Reasons] [66] - [68] in finding that a presumption arises that: (a) procedural fairness is required in relation to the Respondent's exercise of power to make a decision to give a notice under s 70A of the [Residential Tenancies Act]; and (b) such statutory power would be exercised reasonably, on the basis that its decision was not simply or purely the exercise of a contractual right. 2. The primary judge erred in law at [April 2025 Reasons] [80] in holding that the impact of terminating the fixed term tenancy and preventing a periodic tenancy coming into force under section 76C(2) of the [Residential Tenancies Act] was sufficient to answer the description of a decision which may destroy or prejudice the Appellant's interests. The issues 13 The first three grounds of appeal relate to the obligations imposed on the Authority, and raise the following issues: 1. What is the source of the Authority's power to issue a termination notice under s 70A? -- 9 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 10 2. Is the Authority required to afford procedural fairness before deciding to issue a termination notice under s 70A? That is, must the Authority hear from a tenant before issuing a notice of termination under that section? (ground 1) 3. Must a decision to issue a termination notice be legally reasonable? That is, must the Authority act reasonably in deciding whether or not to issue the notice? (ground 2) 4. If the answer to both questions 2 and 3 is 'no', is s 70A invalid? (ground 3) 14 The last four grounds relate to referred question 2. They raise the following issues: 1. Did the primary judge have the power to send question 2 back to the Magistrates Court and direct the magistrate to amend it and refer it back to the Supreme Court? (ground 4) 2. Did the amended question 2 arise? (ground 5) 3. If the Authority's decision to issue a termination notice is impliedly conditioned, can the Magistrates Court determine whether the conditions were met? (ground 6) 4. Should the primary judge have answered the original question 2? (ground 7) 15 The first ground of the notice of contention alleges an error in the primary judge's approach to the analysis of reserved question 1. The issue here is, given that the answer to reserved question 1 turns entirely on statutory construction, would any such error matter? 16 The issue raised by the second ground of the notice of contention is could the Authority's decision to issue the termination notice have destroyed or prejudiced Mr Garlett's interests? 17 In addition, prior to the hearing of the appeal, the court notified the parties that it would be assisted by submissions in relation to a series of preliminary issues relating to the procedure by which questions of law can be reserved by a magistrate and answered by the Supreme Court, and the competency of the appeal. -- 10 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 11 Agreed facts 18 The facts were not in dispute.6 19 On 21 July 2022, the Authority as lessor and Mr Garlett as tenant entered into a fixed term tenancy agreement in respect of an apartment in Summers Street, Perth. The term of the agreement commenced on 16 August 2022 and expired on 15 August 2023. 20 Clause 42.2 of the agreement provided that it could be ended by either the lessor or tenant giving written notice of termination. By cl 55A.1, the notice was required to be given in the prescribed form. 21 On 14 July 2023, the Authority issued, or purported to issue, a notice of termination of the agreement under s 70A of the Residential Tenancies Act, requiring Mr Garlett to deliver up vacant possession of the apartment on 24 August 2023. The notice was in the prescribed form. 22 On 14 July 2023, the termination notice was served on Mr Garlett by pre-paid post. 23 Mr Garlett did not deliver up vacant possession of the apartment on 24 August 2023, and continues to remain in possession. Preliminary issues 24 In relation to the preliminary issues raised by the court, it is sufficient to note the following. Reserving questions of law 25 By s 25 of the Residential Tenancies Act, the Magistrates Court hearing proceedings under that Act may reserve any question of law for the decision of the Supreme Court. There are obviously implied limits on this power. In particular, there must be a connection between the question of law and a controversy that arises in the proceedings. 26 The Supreme Court's power to answer such questions arises from s 25 itself. However, as was recently stated by this court in X v McAllister,7 statutory powers to refer questions of law to a court for determination are generally not construed so as to authorise courts to provide general advisory opinions on hypothetical or abstract questions. 6 See Agreed Facts and Documents BAB 59 - 60. 7 See X v McAllister [2021] WASCA 3; (2021) 57 WAR 187 [43] - [46]. -- 11 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 12 For this reason, a court which is asked such a question may decline to answer it. Alternatively, the court may provide a qualified answer so as to, in effect, answer a question which is neither hypothetical nor abstract, and which is connected to a controversy that arises in the proceedings. 27 As we will explain, it would have been open to the primary judge in this case to refuse to answer both of the reserved questions. 28 Reserved question 1 asked the primary judge whether the Authority's power to issue the notice was conditioned by an obligation of procedural fairness and an obligation to make a legally reasonable decision, without identifying what the alleged obligations required the Authority to do. Further, it was not an agreed fact that, if the Authority's power was so conditioned, it had breached either or both of those limits. The agreed facts did not touch on whether Mr Garlett had been told of the Authority's intention to issue the notice and given an opportunity to say why it should not be issued, or why the notice was issued. Further, if Mr Garlett intended to allege that the decision was unreasonable because it was outside the bounds of reasonable decision-making as contemplated by the Residential Tenancies Act due to the impact it would have on him, the agreed facts did not touch on what that impact was likely to be. 29 In the proceedings before the primary judge, the Authority did not contend that it afforded Mr Garlett procedural fairness and did not contend that its decision to issue the notice was justifiable on the ground that it was legally reasonable. This is, however, not the same as an admission that, if the Authority's power was impliedly conditioned as alleged, it would have breached either or both of those conditions. If the primary judge had found, for example, that the Authority's power was conditioned by an obligation of procedural fairness of limited scope, and if the Authority could prove in the Magistrates Court that it had met such a limited requirement, reserved question 1(a) would have been moot. For this reason, it would have been open to the primary judge to refuse to answer question 1 or require the parties to stipulate what the Authority relevantly did (or did not do) before answering it. 30 As for reserved question 2, as the primary judge rightly observed, it was expressed too broadly in its original form. We would infer that it was intended to ask whether, if the Authority's power was impliedly conditioned as alleged, the Magistrates Court could determine whether those conditions had been met. However, in its terms, it was not so -- 12 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 13 limited. The amended question 2 made it clear that it was so limited. Instead of arranging for question 2 to be amended, it would have been open to the primary judge to simply refuse to answer the original question, or answer it only so far as it asked whether, if the Authority's power was impliedly conditioned as alleged, the Magistrates Court could determine whether those conditions had been met and otherwise refuse to answer it. 31 In the Magistrates Court proceedings, both parties agreed that the questions should be reserved to the Supreme Court. However, the Authority now contends that the magistrate ought to have made factual findings relevant to the questions of procedural fairness and legal reasonableness, as to what the Authority did (and did not do) and why, before reserving any questions to the Supreme Court.8 32 We agree that would have been the preferable course. However, we consider that it was open to the primary judge to answer each question in the limited way we have outlined above. Such limited answers could not be described as general advisory opinions on hypothetical or abstract questions. The utility of providing such answers is obvious. If the Authority's power to issue the termination notice was not conditioned by procedural fairness or legal reasonableness, the dispute will effectively end.9 If the Authority's power was conditioned, and if the Magistrates Court is entitled to determine whether the conditions were met, the Authority will need to adduce evidence to show that the conditions were met or concede that it acted beyond power. Competency of appeal 33 Section 26 of the Residential Tenancies Act provides, in effect, that there is no appeal from 'an order made by a court under this Act'. This raises the question as to whether an appeal may be brought in relation to the primary judge's answers to the questions. 34 We are satisfied that an appeal may be brought. 35 In our view, an answer from the Supreme Court to a reserved question is not 'an order made under the Residential Tenancies Act'. In answering the question, the Supreme Court has no power to make such 8 Appeal ts 63 - 65, 67 - 68. 9 Leaving only the issue of whether the orders for termination of the agreement and for possession should be suspended for up to 30 days: see s 72 of the Residential Tenancies Act 1987 (WA), set out below. -- 13 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 14 orders as the magistrate might make in light of the answer.10 Further, we consider that the 'court' referred to in s 26 is the 'competent court' that has jurisdiction over disputes as conferred by s 12A and s 13 of the Residential Tenancies Act.11 For disputes such as this, the 'competent court' is the Magistrates Court.12 36 In addition, by s 58(1)(b) of the Supreme Court Act 1935 (WA), this court has the power to hear and determine 'appeals from a judge'. Section 26 of the Residential Tenancies Act does not purport to amend or limit that power. 37 This appeal is therefore competent. 38 Further, leave is not required. It was common ground that the answers given by the primary judge were binding on the parties and finally determined the questions that were answered. Are there implied conditions on the Authority's power to issue a termination notice under s 70A? (grounds 1 and 2) 39 Grounds 1 and 2 assert that there are implied conditions on the Authority's power to issue a termination notice under s 70A. Mr Garlett contends that the learned primary judge erred in concluding that the Authority's power to issue a notice under s 70A of the Residential Tenancies Act was not conditioned by a requirement that the tenant be afforded procedural fairness or a requirement that the decision to issue the notice be legally reasonable. Mr Garlett contends that a notice purporting to be issued under s 70A of the Residential Tenancies Act in breach of either of those requirements would be invalid, and could not be characterised as such a notice within the meaning of s 72(1). 40 As to procedural fairness, Mr Garlett contends that the Authority was required to give him notice of its proposal to give him a termination notice and its reasons for intending to give him the notice, and give him an opportunity to say why it should not be issued. As to legal reasonableness, Mr Garlett says that, as the Authority did not give him any reasons for its decision, he can only contend that the outcome 10 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 [22] (French CJ) referring to s 66 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), recited and approved in Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 [149] (Allsop CJ, Kenny, Besanko, Robertson & Mortimer JJ) referring to s 45 of the Administrative Appeals Tribunal Act 1975 (Cth). 11 See the definition of 'competent court' in s 3 of the Residential Tenancies Act. 12 Residential Tenancies Act, s 12A, s 12 (definition of 'prescribed dispute'), s 72, and s 3 (definition of 'competent court'). -- 14 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 15 was unreasonable. He contends that it was unreasonable because, given his particular circumstances, he will be made homeless if the lease is terminated.13 41 Before dealing with the grounds, we will set out the legislative framework. The legislation The Housing Act 1980 (WA) 42 By s 7(1) and s 7(3) of the Housing Act, the Authority is a body corporate and agent of the Crown in right of the State. 43 The long title 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 …'. 44 By s 4, the objects of the Housing 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. 45 By s 11A(1), the Minister may give any direction to the Authority with respect to the performance of its functions. 13 Appeal ts 9 - 11. -- 15 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 16 46 Section 12 provides for the general powers of the Authority, including that, subject to and for the purposes of the Housing 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[.] 47 Division 3 of pt III of the Housing Act provides generally for the Authority to let or lease houses. Section 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. 48 An 'eligible person', as referred to in s 28, is a person who satisfies the conditions of eligibility as determined by the Authority and approved by the Minister for the purposes of that provision.14 The Residential Tenancies Act 49 At common law, a lease gives the lessee the right of exclusive occupation of the leased premises for the term of the lease. If the tenant holds over without consent, the lessor's legal remedy is an action for ejectment. The Residential Tenancies Act modifies the way in which the right of exclusive occupation conferred by a lease of 'residential 14 Housing Act 1980 (WA), s 5(2). -- 16 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 17 premises' may come to an end. There is no issue that the leased premises in the present case are 'residential premises', or that the lease agreement is a 'residential tenancy agreement' for the purposes of the Residential Tenancies Act. 50 The applicable version of the Residential Tenancies Act is the Act as at 1 July 2022. Where we refer to the Residential Tenancies Act in these reasons, we are referring to that version. We will also refer to the provisions of that version in the present tense for ease of comprehension. 51 The long title to the Residential Tenancies Act relevantly provides that it is an Act 'to regulate the relationship of lessors and tenants under residential tenancy agreements'. 52 By s 5, the Residential Tenancies Act applies, subject to s 5, s 6 and s 7, to any residential tenancy agreement entered into, renewed, extended, assigned or otherwise transferred after the commencement of the Act. Termination 53 Part V of the Residential Tenancies Act provides for the termination of residential tenancy agreements. 54 Section 60(1) of the Residential Tenancies Act provides that, despite any Act or law to the contrary, a residential tenancy agreement shall not terminate or be terminated except in one of the circumstances specified in that subsection. Two of those circumstances are: (a) where the lessor or tenant gives notice of termination under this Act and - (i) the tenant delivers up vacant possession of the premises on or after the expiration of the period of notice required under this Act; or (ii) a competent court, upon application by the lessor, terminates the agreement under section 71; (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 -- 17 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 18 (ii) a competent court, upon application by the lessor, terminates the agreement under section 72[.] 55 By s 76C, if a residential tenancy agreement that creates a tenancy for a fixed term is not terminated before the expiry day, the agreement will continue as a periodic tenancy after the expiry day, on the same terms that applied immediately before the expiry day or as modified by a court. Under s 62(7), a tenant under such an agreement will not breach that agreement by failing to deliver up vacant possession of the premises at the expiration of the term. 56 Therefore, in the absence of another circumstance specified in s 60(1) applying, a residential tenancy agreement, even for a fixed term tenancy, can only be brought to an end if a notice of termination is given and either the tenant vacates the premises, or a court terminates the residential tenancy agreement. 57 Mr Garlett submits that, because of these provisions, it is a misnomer to describe agreements in which the parties had agreed to a fixed term as 'fixed term' agreements. We do not agree. While the effect of the Residential Tenancies Act is that an agreement that creates a tenancy for a fixed term will transform into a periodic tenancy unless and until certain things occur, the parties nevertheless agreed that the term of the tenancy would be for a fixed period. Because of that agreement, the manner by which the agreement could be terminated under the Residential Tenancies Act was different to the manner by which an agreement for a periodic tenancy could be terminated. Options for termination 58 Various sections of the Residential Tenancies Act provide for a lessor to give notice of termination of a residential tenancy agreement either for cause or for no cause (and, in limited circumstances, to terminate an agreement without notice15). 59 For example, s 62(1) provides that a lessor may give notice of termination of a residential tenancy agreement to the tenant upon the ground that the tenant has breached a term of the agreement and the breach has not been remedied. Section 62(3) provides that a notice is 15 Section 73 - s 75 of the Residential Tenancies Act provide for an application for termination to be made to the court without notice of termination for cause on certain grounds. Those grounds concern the tenant causing serious damage or injury (s 73), undue hardship by the lessor or tenant (s 74), objectionable behaviour by a social housing tenant (s 75A), and breach of the agreement by the lessor (s 75). In each case the court must be satisfied that the ground for termination exists. -- 18 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 19 ineffectual unless it is preceded by a notice specifying the breach and requiring that it be remedied. 60 Other examples of notices terminating on specific grounds are a notice by a lessor who has entered into a contract to sell the premises (s 63), and a notice where the residential tenancy agreement is frustrated (s 69). 61 Section 76A and s 76B of the Residential Tenancies Act provide for a lessor who suspects a tenant has abandoned the premises to give notice to the tenant, who may dispute the notice on an application to the court. If the tenant does not do so, they are taken to have abandoned the premises with the consequence, under s 60(1)(f), that the residential tenancy agreement terminates. If the tenant does make an application disputing the notice, the court may set aside the notice or make an order terminating the residential tenancy agreement under s 76B(3) of the Residential Tenancies Act. Other provisions about abandonment are contained in s 77 - s 78B of the Residential Tenancies Act. 62 Part V div 3 of the Residential Tenancies Act makes specific provision in relation to the termination of a social housing tenancy agreement on either of two grounds, namely that: (a) the tenant is not eligible to reside in social housing premises, or to reside in the class of social housing premises to which the agreement relates (s 71C); or (b) the lessor has offered to enter into a new social housing tenancy agreement with the tenant in respect of alternative premises (s 71H). 63 In either case, the Residential Tenancies Act provides for the tenant to be given notice of the decision and to be able to apply for a review of the decision before a notice of termination on these grounds is issued: s 71F, s 71G, s 71I and s 71J of the Residential Tenancies Act. 64 Once a termination notice for cause is given under the above provisions, and the tenant does not deliver up vacant possession of the premises, the lessor may apply for an order under s 71 of the Residential Tenancies Act. The court may only make an order terminating the tenancy if satisfied that (1) notice of termination was given by the lessor or tenant to the other and that it complied with and -- 19 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 20 was given in accordance with the Act, and (2) the lessor has established the relevant ground and the other matters referred to in s 71 of the Act. 65 Section 64 of the Residential Tenancies Act permits a lessor to give notice of termination of a tenancy agreement 'without specifying any ground for the notice'. It provides for an application by the tenant to a court which may, 'as it thinks fit having regard to the justice and merits of the case': (a) extend the notice period; (b) make an order that the residential tenancy agreement is not terminated as a consequence of the notice; or (c) make an order terminating the residential tenancy agreement under s 71(2) of the Residential Tenancies Act. However, s 64(5) provides that s 64 does not apply in relation to a residential tenancy agreement that creates a tenancy for a fixed term during the currency of that term. 66 In this context, s 70A applies where notice is given under a fixed term tenancy agreement. Section 70A(2) provides: 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. 67 Subject to presently immaterial exceptions, the day specified in a notice as the day on which possession of the premises is to be delivered up by the tenant is the 'possession day' as defined in s 70A(1) of the Residential Tenancies Act. Section 70A(3) requires notice to be given at least 30 days before the possession day, while s 70A(4) provides that the possession day must not be a day earlier than the expiry day. The 'expiry day' is the day on which the residential tenancy agreement would (but for the operation of the Act) upon its terms have terminated by effluxion of time or the happening of an event.16 16 Residential Tenancies Act, s 3. -- 20 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 21 68 Section 72(1) and s 72(2) of the Residential Tenancies Act provide: (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. 69 Section 72(4) requires a court making an order under s 72(2) to 'specify the day as from which the orders shall operate, being within 7 days after the day on which the orders are made'. 70 Section 72(2) and s 72(4) are expressed to operate subject to s 72(3), which provides for a suspension of the operation of orders made under s 72(2) for up to 30 days in certain circumstances, or for the court to refuse to make orders in certain circumstances where the term of the tenancy is less than 90 days. Where the fixed term of the tenancy is 90 days or more, the court has no discretion to refuse to make orders terminating the residential tenancy agreement and for possession of the premises. Formal requirements of a notice 71 Section 61 sets out the formal requirements of a notice of termination by the lessor. It provides that a notice must: (a) be in writing and in the prescribed form; and (b) be signed by the lessor or a property manager of the residential premises; and (c) identify the premises the subject of the agreement; and (d) specify the day on which possession of the premises is to be delivered up by the tenant; and (e) specify and give particulars of the ground, if any, upon which the notice is given. -- 21 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 22 72 The prescribed form is 'Form 1C'. The form commences as follows: FORM 1C RESIDENTIAL TENANCIES ACT 1987 Section 61(a) NOTICE OF TERMINATION (NOTE: This form is NOT to be used in respect of non-payment of rent.) TO ..................................................................................................................... (Name of tenant(s)) I hereby give you notice of termination of your residential tenancy agreement and require you to deliver up vacant possession of the premises at: .............................................................................................................................. (Address of rented premises) .............................................................................................................................. (Date on which vacant possession of the premises is to be given) ONLY ONE OF THE FOLLOWING GROUNDS IS TO BE SPECIFIED — DELETE THE OTHER 6 73 The form then lists seven 'grounds', by reference to different sections of the Residential Tenancies Act, being s 62, s 63, s 64, s 69, s 70A, s 71C and s 71H. 74 The fifth 'ground' in Form 1C, which refers to s 70A, states: This notice of NOT LESS THAN 30 DAYS is given to you in exercise of the lessor's right to end the residential tenancy agreement on its expiry date (see the Residential Tenancies Act 1987 section 70A). (Note: This notice cannot be given during the term of a periodic residential tenancy agreement.) 75 The form did not require any additional particulars to be given for a termination under this fifth 'ground', or provide a space in which particulars could be given. -- 22 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 23 Requirements of a notice under s 70A 76 For a purported notice to have the character of a notice of termination under s 70A of the Residential Tenancies Act it must meet the following express requirements: (a) it must give notice of the termination of a fixed term residential tenancy agreement; (b) it must be at least substantially in the form provided by s 61; (c) it must specify a date for the tenant to deliver up possession of the premises which is on or after the date on which the fixed term expires; and (d) the notice must be given at least 30 days before the possession day. What is the source of the Authority's power to issue a termination notice under s 70A? 77 As noted earlier, Mr Garlett contends that the learned primary judge erred in concluding that the Authority's power to issue a notice under s 70A of the Residential Tenancies Act was not conditioned by a requirement that the tenant be afforded procedural fairness or a requirement that the decision to issue the notice be legally reasonable. 78 Mr Garlett relies on the 'established and "strong" common law presumption that a statutory power … the exercise of which is capable of having an adverse effect on legally recognised rights or interests … is impliedly conditioned on the observance of procedural fairness'.17 Where the relevant power directly affects the rights or interests of a particular individual, the presumption operates 'unless clearly displaced by the particular statutory scheme'.18 79 Mr Garlett notes that it is similarly presumed that such a statutory power is impliedly conditioned on the requirement that the power be exercised reasonably.19 80 During the hearing of the appeal, it became apparent that Mr Garlett was not contending that a lessor's power to issue a notice 17 Disorganized Developments Pty Ltd v The State of South Australia [2023] HCA 22; (2023) 280 CLR 515 [33]. 18 Disorganized Developments [33]. 19 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [63], [88] - [92]. -- 23 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 24 under s 70A of the Residential Tenancies Act was impliedly conditioned. Mr Garlett accepts that a private lessor issuing a notice under s 70A is not required to afford procedural fairness or make a legally reasonable decision.20 Mr Garlett contends, however, that when the Authority decides to issue a notice under s 70A of the Residential Tenancies Act, it is exercising a power under the Housing Act, and it is that power that is impliedly conditioned. 81 Mr Garlett contends that, when deciding to issue a notice under s 70A of the Residential Tenancies Act, the Authority is exercising what he calls 'the Statutory Lessor Power', which he says is given by s 12(b) of the Housing Act, read with s 28 and s 29,21 and not a power under s 70A of the Residential Tenancies Act, and not a power under the tenancy agreement. 82 The Authority contends that it was exercising its contractual right under cl 42.2 of the agreement.22 83 We do not find Mr Garlett's description of the power as 'the Statutory Lessor Power' to be helpful. Section 12(b) of the Housing Act is a broad and general power, not limited to acts and things that relate to dealing with tenants, or even to public housing. The Authority also has functions relating to the provision of government employees' housing, and the management of housing that it does not own.23 However, nor do we agree with the Authority that it was simply exercising a contractual right when it issued the termination notice. The Authority's power to issue the notice was relevantly given and limited by three sources: 1. The contract, by which the parties agreed to a fixed term (and which the Authority was entitled to enter into by s 28 of the Housing Act), and agreed that the contract could be ended by either the lessor or tenant giving written notice of termination. 2. Section 12(b) of the Housing Act, which gave the Authority the power to exercise all such powers and do all such acts and things as a private person in the State has or may do, subject to and for the purposes of the Housing Act, which obviously included the power to do what a private lessor could do (subject to and for the purposes of the Housing Act); and 20 Appeal ts 18. 21 WAB 24 and 26 (Appellant's submissions [15] and [22]); appeal ts 20. 22 WAB 50 (Respondent's submissions [14]). 23 Appeal ts 74. -- 24 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 25 3. The Residential Tenancies Act which modified a lessor's power (private or not) to terminate a fixed term residential tenancy agreement, by providing that a fixed term agreement will only be terminated when the conditions in s 60(b) (which includes the issue of a notice of termination under s 70A) have been met. 84 For this reason, we prefer to describe the Authority's power to issue a termination notice under s 70A as simply that. Further:24 [T]he fact that a power takes a statutory form, whilst a relevant consideration, does not necessarily mean that it is impliedly constrained by the administrative law principles that commonly condition the exercise of statutory powers. It is relevant to have regard to the nature of the power, and not simply its statutory form, when considering whether any jurisdictional pre-requisites to its exercise should be implied. For example, where the power is, or is closely analogous to, a power possessed in common with natural persons (such as the power to contract, to undertake non-coercive investigations or to hold and transfer property and information), this may be an indicator that it is not subject to implied statutory constraints. (citations omitted) Section 70A is not impliedly conditioned 85 Before dealing with Mr Garlett's contention, it is useful to first explain why we consider that he was right to concede that a lessor's power to issue a notice under s 70A of the Residential Tenancies Act is not impliedly conditioned. 86 It is significant that the provisions of the Residential Tenancies Act are not directed to the exercise of executive power by a public authority. While s 70A and s 72 of the Residential Tenancies Act apply to social housing tenancies which may be entered into by the Housing Authority, they are directed to all residential tenancy agreements which may be entered into by both private and public lessors. They are concerned to regulate the private rights of the parties to such an agreement. 87 The fact that s 70A and s 72 of the Residential Tenancies Act provide for a 'no cause' termination of a residential tenancy agreement at the end of a fixed term lease is significant. Those provisions do not constrain a lessor from giving a notice of termination in a way that exclusively advances the lessor's perceived interests at the conclusion of the agreed fixed term of the lease. A lessor is given the capacity to 24 King v Ombudsman [2020] SASCFC 90; (2020) 137 SASR 18 [93] (Doyle J), cited with approval in Patole v Child & Adolescent Health Service [2024] WASCA 126 [27]. -- 25 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 26 issue a notice for any reason (which is not required to be disclosed in the notice of termination) at the end of the agreed term. The fact that the lessor is able to have regard exclusively to their own interests would make it difficult to imply a condition that the lessor must give the tenant an opportunity to be heard before acting in what the lessor perceives to be its interests. Further, if a notice of termination can be issued for any reason, it is hard to see how an implication of reasonableness could be drawn (or adjudicated upon if the requirement was drawn). 88 It is also significant that s 70A provides for the issue of a notice of termination by either a lessor or a tenant. If conditions of procedural fairness and legal reasonableness are to be implied for the issue of a notice of termination under s 70A, then the requirement will apply to a tenant as well. This seems unlikely. 89 The fact that other provisions of the Residential Tenancies Act expressly address the way in which procedural fairness must be afforded to a tenant when a residential tenancy agreement is terminated for cause also counts against conditions being implied in s 70A of the Residential Tenancies Act. These include provisions for: (a) notice and an opportunity to remedy an alleged breach of the residential tenancy agreement before a notice of termination for breach is given; (b) notice and an opportunity to seek review before a notice of termination of a social housing tenancy is given on the ground of ineligibility or on the basis that alternative premises will be provided; and (c) termination on the ground of suspected abandonment to be preceded by a notice to the tenant. The Residential Tenancies Act also provides for the court to determine whether the grounds for the proposed termination for cause are established and, in the case of termination for breach, that the breach is in all the circumstances such as to justify termination of the agreement (s 71(2)(b)). 90 Further, s 70A does not in terms provide a statutory power to issue a notice. Rather it provides for the continuation of a fixed term residential tenancy agreement if the lessor (who may be an individual or private corporation) does not do something. -- 26 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 27 91 The subject matter of s 70A, and the language of that provision in the context in which it appears, count strongly against an implied requirement for a lessor to hear from a tenant before issuing a notice of termination under that section or an implied requirement that the lessor act reasonably in deciding whether or not to issue the notice. 92 We turn now to Mr Garlett's contentions that, where the Authority is the lessor, there are such implied requirements. We will start with the alleged obligation to afford procedural fairness. Is the Authority required to afford procedural fairness before deciding to issue a termination notice under s 70A? (ground 1) 93 Mr Garlett points out that the Authority is a body corporate 'established, governed and limited' by the Housing Act.25 He notes that, by s 12(b), the Authority may only exercise powers 'subject to, and for the purposes of' the Housing Act. 94 As for the limitation of the words 'subject to', Mr Garlett says it captures two express powers relevant to the appeal. First, the power in s 28, by which the Authority may let or lease premises to 'any eligible person'. Second, the power in s 29, which permits the Authority to let or lease property on a periodic or fixed term tenancy and on such terms and conditions as the Authority thinks fit. 95 As for the limitation of the words 'for the purposes of', Mr Garlett says that the phrase means that the Authority can only exercise its powers in accordance with the objects and the higher level public purpose of what the Authority was to do, and the long title of the Act. He submits that it is those words that show that, when the Authority decides whether to issue a termination notice, it is exercising a public power, not a private power.26 96 It is undoubtedly correct that the Authority is required to exercise its powers for the purposes of the Housing Act. However, in our view, this does not assist Mr Garlett. The powers of every statutory body are defined and limited by the Act which incorporates and regulates it. Whenever a statutory body exercises a power, it must do so for the purposes and objects of its incorporating Act, and consistently with its functions. Yet it is well established that not every exercise of power by a statutory body will be impliedly conditioned by the requirements of procedural fairness and legal reasonableness. The question remains 25 Appeal ts 13. 26 Appeal ts 22 - 23. -- 27 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 28 whether the Authority's power to decide to issue a notice under s 70A of the Residential Tenancies Act was impliedly conditioned by the requirements of procedural fairness and legal reasonableness. 97 Mr Garlett's submissions traverse a series of points, many of which are interconnected. However, for the sake of simplicity, we will refer to them individually and numerically. We have, however, considered them as a whole. 98 First, Mr Garlett submits that the objects of the Housing Act are directed to the provision of housing, and the letting and leasing of housing, not to taking housing away. He submits that, as shown by the object of providing 'assistance to enable persons to obtain accommodation', the purpose of the Housing Act is to improve access to housing and to improve conditions of housing, with the Authority being a housing provider of last resort. He notes that a tenant whose lease is terminated by the Authority may well become homeless. 99 It is not entirely clear whether Mr Garlett is submitting that a purpose of the Housing Act is to prevent homelessness.27 As such a purpose would be unachievable in practice, we will assume that Mr Garlett only intends to submit that the Housing Act recognises the social good of assisting vulnerable people to avoid homelessness, as shown by the express object of providing assistance to vulnerable people to obtain housing. 100 While we accept that one of the purposes of the Housing Act is to assist vulnerable people to obtain housing, this purpose is directed to all eligible persons, not just Mr Garlett. The termination of the lease of one eligible person will, ordinarily, permit another eligible person to be housed. It is not suggested that the Authority has a surplus of available accommodation. 101 Second, Mr Garlett asserts that the breadth of what he calls 'the Statutory Lessor Power' given by s 12(b) of the Housing Act supports a conclusion that it was intended to be exercised fairly.28 We accept that the power given by s 12(b) is broad. However, the Authority's powers as a lessor are not broad. In addition to the limit imposed by s 28 of the Housing Act (that it may only lease to 'eligible persons'), the Authority's powers are limited, in the same way as the powers of private lessors are 27 See appeal ts 23 - 25. 28 WAB 24 and 26 (Appellant's submissions [15] and [22]). -- 28 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 29 limited, by the terms of its agreements and the Residential Tenancies Act. Those limitations are considerable. 102 Third, Mr Garlett submits that what he calls 'the Statutory Lessor Power' given by s 12(b) of the Housing Act is concerned with a one-to-one relationship between the Authority as lessor and an eligible person as tenant. He submits that the power 'is apt to have significant potential effects on "among the most vulnerable and powerless in our community", namely those in a contractual relationship of tenant-lessor with the Authority'.29 103 It may be accepted that any decision the Authority makes to terminate a lease may have significant effects on a vulnerable person. However, the Residential Tenancies Act operates to protect tenants generally and, in certain circumstances under div 3 of pt V, tenants in social housing. Further (and again), the termination of the lease of one person will, ordinarily, permit another eligible person to be housed. 104 Fourth, Mr Garlett submits that it is 'telling that the WA Parliament directly engaged with limits on the jurisdiction of courts and natural justice in the context of residential tenancies [by s 26(2) of the Residential Tenancies Act], but did not do so in respect of s 70A specifically nor the Authority generally'.30 105 We do not accept this is 'telling'. 106 First, Mr Garlett accepts that s 70A of the Residential Tenancies Act is not impliedly conditioned. 107 Second, and in any event, s 26 of the Residential Tenancies Act seeks to limit the review of a magistrate's decision in residential tenancy proceedings. Doing so was consistent with the intention revealed by the Residential Tenancies Act that such proceedings were to be dealt with quickly and informally.31 108 Third, in the Residential Tenancies Act, Parliament expressly requires lessors (whether private lessors or the Authority or another social housing provider) to afford procedural fairness to tenants in relation to termination decisions in numerous contexts. In addition, by div 3 of pt V of the Residential Tenancies Act, Parliament expressly 29 WAB 26 (Appellant's submissions [22]) (citation omitted). 30 WAB 27 (Appellant's submissions [23]). 31 See the discussion below in relation to the minor case procedure which applies to applications brought under the Residential Tenancies Act. -- 29 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 30 requires the Authority (or another social housing provider) to afford procedural fairness to tenants in social housing if it seeks to terminate a tenancy agreement on one of two specified grounds. We consider that this is a powerful indicator that there is no implied requirement to afford procedural fairness when the Authority decides to issue a termination notice in other circumstances. 109 Mr Garlett submits that the presence of div 3 of pt V is not such an indicator, because it would mean that:32 [T]he Authority could freely avoid following the procedures in div 3 by taking the easier, less convoluted approach … under s 70A to terminate fixed term social housing tenancy agreements. It is inherently unlikely that Parliament prescribed a tailored scheme for procedural fairness to achieve the same end as a scheme completely unqualified by procedural fairness within the same legislation. That would naturally incentivise the use of the bluntest means of eviction, which would run counter to the objects of the Act governing and limiting the Authority. 110 This submission overlooks the limited circumstances in which a notice may be issued by the Authority under s 70A of the Residential Tenancies Act, and the effect of such a notice. Such a notice may only be issued where the agreement was for a fixed term, and will never lead to the tenancy ending prior to the end of the fixed term. If the Authority wishes to terminate a fixed term tenancy before the end of the fixed term, the Authority must find the power to do so elsewhere in the Residential Tenancies Act. 111 Mr Garlett further contends that the express limitation in div 3 of pt V can be explained as being an effort to codify the obligations of procedural fairness and legal reasonableness, to provide clarity and transparency.33 Given the limited nature of the obligations imposed by div 3, and the fact that div 3 deals with the most vulnerable of tenants, this is unpersuasive. 112 Fifth, and similarly, Mr Garlett notes that the Housing Act does not expressly exclude a duty to afford procedural fairness. This is true. However, if it did, there would be no need to consider whether there is an implied duty. 113 Sixth, Mr Garlett further submits that the Housing Act and the Residential Tenancies Act must be viewed as a scheme. This may be accepted, at least in relation to residential tenancy agreements involving 32 WAB 30 (Appellant's submissions [32]). 33 Appeal ts 25 - 26. -- 30 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 31 the Authority. However, we do not accept this assists Mr Garlett, for the following reasons. 114 First, the scheme created by the two Acts envisages that the Authority will use private law mechanisms of contracts and leases to lease premises to persons to whom it can lease under s 28 of the Housing Act, namely, eligible people. The Authority is given the powers and capacities of a natural person to enter into leases with eligible people. Once a lease is entered into, the rights and obligations of the parties to the lease are governed by the lease agreement as read with the Residential Tenancies Act. The Authority and the tenant with whom it contracts have the same rights and obligations as parties to leases not involving the Authority, with one exception. The exception is if pt V div 3 of the Residential Tenancies Act applies. As noted earlier, that division applies to residential tenancy agreements entered into by the Authority or other social housing providers, and does not apply to private lessors. It expressly limits the Authority's power to terminate a social housing tenancy agreement on either of the specified grounds. As we have said, we consider that this is a powerful indicator that there is no implied requirement to afford procedural fairness when the Authority decides to issue a termination notice in other circumstances. 115 Second, the Authority is not given any powers as a lessor that a private lessor would not also have. Its rights to terminate a lease are entirely contained within the terms of the tenancy agreement and the Residential Tenancies Act. 116 Third, by s 28 and s 29 of the Housing Act, the Authority is expressly given the power to enter into fixed term tenancy agreements. This is another indicator that the scheme contemplated that the Authority would have the power to end the tenancy in accordance with the agreement and the Residential Tenancies Act, in the same way as a private lessor could terminate a fixed term tenancy. 117 Seventh, Mr Garlett asserts that the primary judge made errors during his Honour's analysis. It is unnecessary to deal with these assertions. That is because the question for this court is the proper construction of the relevant power. Any analytical errors made by the primary judge would be irrelevant to that question. 118 Eighth, Mr Garlett submits that 'none of the previously identified circumstances in which the presumption has been rebutted by context -- 31 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 32 are present here'.34 Mr Garlett does not address those cases in which it has been held that statutory powers that are similar to powers of natural persons (such as the power to contract) may not be subject to a requirement that procedural fairness be afforded.35 These are discussed later. 119 Ninth, Mr Garlett also relied on several authorities, discussed in the next section. Cases relied on by Mr Garlett Badari v Minister for Territory Families and Urban Housing 120 Mr Garlett submits that a statutory power should not be interpreted as unconditioned by the requirement to afford procedural fairness simply because it is expressed in unqualified terms.36 He notes that the Minister's power in Badari v Minister for Territory Families and Urban Housing37 was a very broad power, yet the High Court held that it was impliedly conditioned. 121 We accept Mr Garlett's proposition. However, that is the extent to which Badari is relevant to the issues in the case. In Badari, the power under consideration was a power given to the Minister by s 23 of the Housing Act 1982 (NT). That section gave the Minister the power to determine the rent to be paid for a dwelling or a class of dwelling. This was plainly a power that existed only under the Northern Territory Housing Act (and not the Residential Tenancies Act 1999 (NT)), and was a power held only by the Minister, not by all lessors. Narrier v Martin (SM) 122 Mr Garlett asserts that Narrier v Martin (SM)38 supports his contention that the Authority's exercise of power in its capacity as lessor is limited by the requirement of procedural fairness and legal reasonableness.39 123 We disagree. 124 In Narrier, Commissioner Martin was dealing with an application to quash a decision of the State Housing Commission to terminate the 34 WAB 27 (Appellant's submissions [24]). 35 Patole [27] - [28], [41]. 36 Appeal ts 38 - 40. 37 Badari v Minister for Territory Families and Urban Housing [2025] HCA 47; (2025) 100 ALJR 30. 38 Narrier v Martin (SM) (Unreported, WASC, Library No 940635, 28 October 1994) 8 - 9. 39 WAB 79 (Appellant's submissions in reply to the Notice of Contention [11] - [12]); appeal ts 35. -- 32 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 33 applicant's tenancy. The Commissioner was required to decide whether the applicant had established that there was an arguable case that the Housing Commission had to comply with the requirements of natural justice in making a decision to terminate a tenancy. The Commissioner said that it was clearly arguable. This was not, however, a final determination. Further, on the facts, the magistrate had found that procedural fairness had been afforded. 125 More importantly, the Commissioner's decision appeared to turn on the provisions of the Housing Agreement (Commonwealth and State) Act 1990 (WA) (Housing Agreement Act); an Act that is no longer in force. 126 The Housing Agreement Act related to an agreement between the Commonwealth, States and Territories as to financial assistance from the Commonwealth for the purposes of housing. The recitals to the Housing Agreement Act said, among other things, that people in rental housing shall have security of tenure and that, where a tenant was required to move from one dwelling to another by a State, a choice of dwellings and locations appropriate to the tenant's needs was to be provided, and recognition was to be accorded to the rights of applicants and tenants and other users of assistance. Part XI of the Housing Agreement Act expressly provided for 'user rights and participation' in respect of, among other things, tenant access to information and the establishment of an independent appeal mechanism for decisions made by the State as to the provision of housing assistance funded under the agreement. Mallard v Homes Victoria 127 Mr Garlett also relied on Mallard v Homes Victoria.40 128 In Mallard, the Chief Executive Officer of Homes Victoria decided to implement a Victorian Government policy to retire all of Melbourne's public housing towers and redevelop the land on which the towers were located. A representative plaintiff for residents of the towers sought judicial review of the decision contending, among other things, that, in exercising its power to make such a decision under s 15(1)(a) of the Housing Act 1983 (Vic), Homes Victoria was required to afford procedural fairness. The primary judge rejected this contention, holding that the relevant power was not conditioned on the 40 Mallard v Homes Victoria [2025] VSCA 339. -- 33 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 34 observance of procedural fairness, and that the impugned decision did not directly affect the residents' legally recognised interests.41 129 The tenant's appeal was dismissed. The Victorian Court of Appeal held that the mere decision to redevelop tenanted land did not directly and immediately affect a tenant's rights or interests, as that would only occur if action to terminate the tenancy was taken under the Residential Tenancies Act 1997 (Vic).42 However, in the course of its reasons, the Victorian Court of Appeal appeared to accept that the power in s 15 would be subject to procedural fairness if it was capable of directly and immediately affecting the rights and interests of tenants.43 130 The day after Mr Garlett's appeal was heard, the High Court heard an application by the representative tenant in Mallard for special leave to appeal.44 The tenant argued, among other things, that making a decision to redevelop land would permit Homes Victoria to issue a termination notice under s 91ZY of the Victorian Residential Tenancies Act, which enabled a termination notice to be issued if the lessor intends to vacate the premises and has all necessary permits and consents to do so. The tenant argued that the Court of Appeal was wrong to have held that the decision to redevelop did not directly affect his interests. The tenant argued (as he had below) that it did affect his interests because it entitled Homes Victoria to issue a termination notice and, if he did not vacate, to apply to the Victorian Civil and Administrative Tribunal for a possession order, which he would have limited grounds to resist. Special leave was granted on this ground. 131 There are significant differences between the statutory framework and facts in Mallard and the framework and facts in Mr Garlett's appeal. The factual differences are self-evident. The significant legislative differences are as follows. 132 First, the Western Australian Residential Tenancies Act provides for 'no grounds' termination of a tenancy. 133 Second, the objects in s 6 of the Victorian Housing Act are expressed in more emphatic terms than the objects in s 4 of the Western Australian Housing Act. 41 Mallard [72] - [74]. 42 Mallard [126] - [132]. 43 Mallard [100] - [112]. 44 Mallard v Homes Victoria [2026] HCATrans 30. -- 34 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 35 134 Section 6(1) of the Victorian Housing Act provides that the objects include 'to ensure that every person in Victoria has adequate and appropriate housing at a price within his or her means by encouraging' various things and 'to promote security and variety of tenure'. 135 Section 6(2) provides that: It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the objects set out in subsection (1) and that every power, authority, discretion, jurisdiction and duty conferred or imposed by this Act shall be exercised and performed so as by design and intent to promote and achieve those objects. 136 No doubt these differences are why Mr Garlett did not contend that Mallard directly supported his contention that the Authority's decision to issue the termination notice under s 70A was impliedly conditioned. Rather, he referred to Mallard as confirming that, to determine whether a statutory power is impliedly limited, it is necessary to consider the statutory context.45 He also referred to Mallard as supporting his contention that labels of 'capacity' and 'power' are unhelpful, and that the focus should be on the substantive nature of the power, and whether it is 'sufficiently public'.46 137 The Authority submits that the Victorian Court of Appeal in Mallard observed that the implication from the structure of the Victorian Housing Act was that the rights and obligations of Homes Victoria, and any tenant, are to be found in the Victorian Residential Tenancies Act, not the Victorian Housing Act.47 This is true. However, again, the differences in the legislation reduce the persuasive force of the observation.48 Cases involving commercial powers 138 The Authority notes that, in numerous cases, the courts have determined that administrative law remedies are not available in relation to decisions by public bodies to terminate or not renew a lease or a licence at the end of the term, citing Khuu & Lee Pty Ltd v Corporation of the City of Adelaide49 and Durney v Unison Housing 45 Appeal ts 19 - 20. 46 Appeal ts 42. 47 Appeal ts 81. 48 See s 14 and s 15 of the Victorian Housing Act and Mallard [116] - [119]. 49 Khuu & Lee Pty Ltd v Corporation of the City of Adelaide [2011] SASCFC 70; (2011) 110 SASR 235. -- 35 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 36 Ltd50 as examples. The Authority acknowledges that those cases discussed the issues in terms of whether the decision was amenable to judicial review. It submits, however, that the reasoning in these cases can equally be understood to mean that the decisions under consideration were not subject to legal limits in relation to which administrative law remedies were available. 139 The Authority further noted that courts have reached similar conclusions in cases under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and its State and Territory counterparts, citing King v Director of Housing,51 and Munupi Wilderness Lodge Pty Ltd v Executive Director of Township Leasing.52 140 Of these, King v Director of Housing is the most closely aligned to the facts in this case. 141 In King v Director of Housing, Ms King, a public housing tenant, applied for judicial review under the Judicial Review Act 2000 (Tas) in relation to decisions made by the Tasmanian Director of Housing to refuse to renew a fixed term tenancy and to terminate her tenancy by serving her with a notice to vacate. Ms King sought judicial review on the ground that the Director had failed to afford her procedural fairness. To succeed, Ms King had to establish that the decisions were of an administrative character made under an enactment for the purposes of s 4(1) of the Tasmanian Judicial Review Act. Porter J (Tennent and Wood JJ agreeing) held that Ms King had failed to establish this because, if the decisions affected legal rights or obligations, this was not because of the force they derived from the relevant enactment. 142 Ms King asserted that the decisions were made under s 16(1) of the Homes Act 1935 (Tas). That section gave the Director power to let any dwelling-house on terms and conditions as he or she saw fit. Ms King submitted that the section embraced the power not to let on a particular occasion, and to terminate lease arrangements. (Unlike Mr Garlett, Ms King did not rely on the Director's power to do all such acts and things as may be required or necessary or appropriate for exercising the powers given to the Director under that or any other Act.53) 50 Durney v Unison Housing Ltd [2019] VSC 6; (2019) 57 VR 158. In this case, the decision-maker was a private entity but Garde J analysed what would have been the position if the decision-maker had been the Director of Housing. 51 King v Director of Housing [2013] TASFC 9; (2013) 23 Tas R 353. 52 Munupi Wilderness Lodge Pty Ltd v Executive Director of Township Leasing [2022] FCA 216. 53 Section 6(3A) of the Homes Act 1935 (Tas). -- 36 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 37 143 Although Porter J accepted that the authority for the Director to not renew Ms King's tenancy and to terminate her lease came from s 16(1) of the Tasmanian Homes Act, his Honour held that the force and effect of the decisions did not. Porter J said:54 The decisions derived their force from the contractual relationship between the parties, as that relationship is governed by the [Residential Tenancy Act 1997 (Tas)]. The lease agreement provided for an expiry date. A decision not to extend or renew the lease beyond that expiry date has force because of the ordinary relationship between parties in that position. The service of the notice to vacate is to be treated in the same way. The decision derives its force from the relationship as governed by the [Residential Tenancy Act]. As the primary judge said, the decision to serve the notice to vacate was a decision that any landlord could make, rather than a decision deriving from the [Homes Act]. That the [Residential Tenancy Act] governed the circumstances in which the Director had to deal with the expiry of the lease, and the issue of a notice to vacate, is irrelevant. The decisions operate because of the general law. 144 Porter J further noted that Ms King's counsel had stressed the special nature of the relationship between the Director and persons having the benefit of public housing. Counsel had argued that the Director's role was one of public and social benefit, and was entirely different from that of the commercial motivations of private landlords, and that the Tasmanian Homes Act did not impose any profit-making obligation on the Director. Porter J said that the fact of any special relationship could not alter the analysis of the source of the force or effect of the Director's decisions. 145 In addition to these cases, the Authority submits that, although it has been said that the requirement under the Commonwealth Administrative Decisions (Judicial Review) Act and its State and Territory counterparts that a decision was 'made under an enactment' is a major limiting factor, it has also been said that both the legislation and the common law deny review of contract decisions. The Authority notes that, in Judicial Review of Administrative Action and Government Liability, the authors write:55 AD(JR)'s general abstention from government contracting bears remarkable similarities to judicial review at common law. …[I]t suffices to say here that common law judicial review will generally not apply to review the exercise of 'consensual' power, a term which Tang 54 King v Director of Housing [64]. 55 Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (7th ed, 2022) 125. -- 37 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 38 used to indicate a no-go area for AD(JR). The common law's rationale for refusing judicial review of contracting decisions is that the decision-maker is exercising 'private' power. AD(JR)'s rationale is, in Tang's terms, that the decision's force or effect comes from the general law rather than from statute. We should add that judicial review is not the only way of checking government illegality in contracting processes. If the government were to award a contract in violation of a statutory restriction as to purpose, procedure or substance, there might well be room for seeking injunctive or declaratory relief by ordinary action. (footnotes omitted) Conclusion - the Authority is not required to afford procedural fairness 146 Mr Garlett submits that the effect of the primary judge's decision was that a decision that could significantly affect the interests of vulnerable people 'could be made on an open-ended, uncheckable, unlimited power that can be freely used by anyone, including a tyrant'.56 This is, to put it mildly, an overstatement. The 'open-ended, uncheckable, unlimited power' found to exist by the primary judge was the Authority's power to issue a termination notice under s 70A to a tenant who had entered into a fixed term tenancy agreement, provided that the Authority issued the notice before the fixed term expired and met the other conditions of s 70A, in circumstances where this could not lead to the termination of the agreement before the fixed term expired. 147 By the scheme of the Housing Act and the Residential Tenancies Act, Parliament has chosen to use the private law mechanism of contract, which is itself affected by the Residential Tenancies Act (in relation to all lessors), to define the powers and obligations of the Authority when it acts as a lessor. 148 The Authority has the power, by s 29 of the Housing Act, to enter into a fixed term residential tenancy agreement. Mr Garlett accepts that the Authority validly exercised its power to enter into such a lease in this case.57 149 At common law, Mr Garlett's lease would have come to an end at the end of the fixed period. It did not, because of the provisions of the Residential Tenancies Act. 56 Appeal ts 45. 57 Appeal ts 31. -- 38 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 39 150 Under the Residential Tenancies Act: 1. while in some circumstances a lessor must give notice before issuing a termination notice, no such prior notice is required in relation to a notice under s 70A; 2. while in some circumstances a tenant is expressly entitled to seek a review of a lessor's decision to terminate, a tenant to whom a notice under s 70A is issued has no such express right; 3. while a tenant in a periodic tenancy who is issued a notice of termination under s 64 is expressly entitled to apply to the Magistrates Court for an order that, among other things, the tenancy agreement is not terminated, a tenant in a fixed term tenancy who is issued a notice under s 70A has no such express right; 4. while some termination decisions are expressly limited to particular reasons, there is no express requirement that a lessor have any reason for issuing a notice under s 70A; and 5. a fixed term residential tenancy agreement cannot be terminated prior to the end of the fixed term by issuing a termination notice under s 70A and, even after an application for termination is made, the Magistrates Court may suspend the operation of orders terminating the tenancy for up to 30 days in certain circumstances. 151 In our view, the scheme established by the Housing Act and the Residential Tenancies Act is inconsistent with a legislative purpose to invalidate a notice of termination issued by the Authority in relation to a fixed term tenancy agreement if the notice was given without first affording the tenant procedural fairness. 152 For these reasons, we have concluded that the Authority's power to issue a termination notice under s 70A of the Residential Tenancies Act is not conditioned by an implied requirement to afford procedural fairness. Must a decision to issue a termination notice be legally reasonable? (ground 2) 153 Ground 2 asserts that the learned primary judge erred in concluding that the Authority's power to issue a notice under s 70A of -- 39 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 40 the Residential Tenancies Act was not conditioned by a requirement that the decision to issue the notice be legally reasonable. 154 As with the common law presumption in relation to procedural fairness, there is a presumption that statutory powers must be exercised reasonably. In Minister for Immigration and Citizenship v Li,58 Gageler J explained: Like procedural fairness, to which it is closely linked, reasonableness is not implied as a condition of validity if inconsistent with the terms in which a power or duty is conferred or imposed or if otherwise inconsistent with the nature or statutory context of that power or duty. The common law principle of construction by reference to which reasonableness is implied does not exclude implication of a different or more particular condition of an exercise of a particular statutory discretionary power or of the performance of a particular statutory duty. The principle rather establishes a condition of reasonableness as a default position. Absent an affirmative basis for its exclusion or modification, a condition of reasonableness is presumed. (citations omitted) 155 We accept Mr Garlett's submission that the fact that a statutory power is not impliedly limited by a requirement to afford procedural fairness does not mean that there cannot be an implied requirement of legal reasonableness (the content of which would obviously not include that, to be reasonable, procedural fairness must have been afforded). However, the structure of the statutory scheme, and the factors that we identified in relation to ground 1, lead us to conclude that the Authority's power to issue a termination notice under s 70A is not conditioned by an implied requirement of legal reasonableness. In particular, a notice under s 70A can never have the effect that a tenant will have to vacate prior to the expiration of the fixed term to which the tenant agreed. Further, even after an application is made and heard in the Magistrates Court, the magistrate may suspend the operation of orders terminating the tenancy for up to 30 days in certain circumstances. In addition, where a tenant loses his or her accommodation, it is likely that another eligible person will gain accommodation. 58 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [92] (Gageler J). -- 40 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 41 If there are not implied conditions, is s 70A invalid? (ground 3) 156 By ground 3, Mr Garlett contends the primary judge erred in his construction: (i) in failing to have regard to the Commonwealth Constitution and/or (ii) by adopting a construction which would lead to constitutional invalidity because the applicable statutory scheme would be beyond the legislative competence of the Western Australian Parliament under the Commonwealth Constitution. 157 In essence, Mr Garlett contends that a legislative provision which purported to give the Authority the power to issue a termination notice would be invalid if the power was not conditioned by a requirement of procedural fairness and legal reasonableness. Mr Garlett submits that this is because the WA Parliament cannot legislate so as to deprive the Supreme Court of its supervisory jurisdiction to enforce the limits on the exercise of state executive and judicial power by persons and bodies other than the Supreme Court. 158 This ground is premised on a misconception of the effect of a determination that the power to issue a termination notice is not conditioned by a requirement of procedural fairness and legal reasonableness. Such a determination is not a determination that the Supreme Court cannot enforce limits on the Authority's power to issue a termination notice under s 70A. It is a determination that the power to issue a termination notice is not subject to the limitations of procedural fairness and legal reasonableness.59 159 Ground 3 is not established. The jurisdiction of the Magistrates Court (grounds 6 and 7) 160 By grounds 6 and 7, Mr Garlett contends, among other things, that the learned primary judge should have answered 'yes' to both the original question 2 and the amended question 2. 161 Mr Garlett contends that the Magistrates Court is permitted, and required, to determine whether a notice purporting to have been issued under s 70A of the Residential Tenancies Act was properly characterised as such a notice. Mr Garlett submits that it follows that, if the Authority's power to decide to issue such a notice is impliedly limited by the requirements of procedural fairness and/or legal 59 See Patole [10] - [12]. -- 41 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 42 reasonableness, the Magistrates Court was permitted, and required, to determine whether those requirements were met. 162 The Authority accepts that the Magistrates Court was permitted, and required, to determine whether a notice purported to have been issued under s 70A of the Residential Tenancies Act was properly characterised as such a notice. However, it submits that all the Magistrates Court is determining is whether the notice was given and whether the notice complied with the requirements of s 61. 163 The Authority advances this submission by two distinct pathways. First, the Authority contends that the phrase '[w]here a lessor or a tenant under an agreement gives notice of termination under section 70A' in s 72(1) of the Residential Tenancies Act is a reference to a notice given in fact, not in law. Second, the Authority contends that, even if s 72 is referring to a notice valid in law, and even if the Authority's power to issue a notice under s 70A is impliedly conditioned by procedural fairness and/or legal reasonableness, the question of whether any such conditions were met cannot be raised in Magistrates Court proceedings, nor decided by a magistrate because this would be a 'collateral challenge', in the sense that it would be a challenge to an administrative act that was merely an incident in determining other issues.60 164 The Authority submits that both contentions are supported by numerous textual indicators.61 165 First, when considering an application under s 72, the Magistrates Court is not exercising general civil jurisdiction. It has a very constrained and confined role. The Authority submits that the role is, at best, 'quasi-judicial' and that, to the extent that the Magistrates Court's function under s 72 is to determine what the lessor's and tenant's rights should be, rather than what they are, it is an indicator that the function is administrative in nature.62 166 Second, by s 12 and s 12A of the Residential Tenancies Act (subject to an exception not relevant here), applications under the Residential Tenancies Act are 'minor cases' for the purposes of pt 4 of the Magistrates Court (Civil Proceedings) Act 2004 (WA). By pt 4, minor case claims are ordinarily dealt with in private and informally, 60 Appeal ts 86, 90 (referring to the description of a 'collateral challenge' given by McHugh J in Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69 (as to which, see page 99)). 61 Appeal ts 93 - 97. 62 WAB 64 (Authority's submissions [59]). -- 42 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 43 with limits on costs and rights of appeal. The Authority notes that the parties are ordinarily required to represent themselves, and none of the exceptions to this general position relate to the legal complexity of the proceedings. 167 Third, the procedure is further modified by the Residential Tenancies Act, including that, by s 14, the proceedings have to be determined within 14 days, or as expeditiously as possible. In addition, by s 26 of the Residential Tenancies Act, no appeal lies from a magistrate's decision under the Residential Tenancies Act. 168 Fourth, the Authority submits that the clear intention of the Residential Tenancies Act is that it is to apply to the Authority in the same way as it applies to private lessors. 169 The Authority concedes that the weight of the second, third and fourth points are reduced by the fact that those points apply to all applications under the Residential Tenancies Act, not only applications under s 72. The Authority maintains, however, that the points were still of some weight, in the context of s 72 being so confined in its terms.63 170 Fifth, the Authority submits that the evident purpose of a notice of termination is to ensure that the recipient is provided with appropriate information, is not left in doubt as to the effect of the notice and is given a minimum period of time (30 days) to arrange their affairs in light of the exercise by the other party of their right to bring the tenancy agreement to an end. The Authority asserts that it is the fact of the giving of the notice (by the lessor or the tenant) that is relevant to achieve that purpose. 171 The Authority submits that, even if its decision to issue the notice was infected with jurisdictional error, it does not follow that the notice was invalid for the purposes of s 72(1). It submits that, having regard to the features of the Residential Tenancies Act upon which it relies, the words 'notice of termination under section 70A' in s 72(1) should be construed as a reference to the fact of the lessor (public or private) having given a notice that satisfies the requirements in s 61 or the tenant having given a notice that satisfies the requirements in s 67.64 172 The Authority acknowledges that, on its construction, there will be two proceedings in two different courts involving the same parties 63 Appeal ts 94. 64 WAB 66 - 67 (Authority's submissions [63] - [65]). -- 43 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 44 whenever a tenant seeks to challenge the validity of a decision by the Authority to issue a termination notice. It submits, however, that this does not alter the parliamentary intention evident from the text as to the confined nature of the court's role under s 72.65 173 We do not accept the Authority's contentions. 174 In our view, the question of the 'validity' of a notice of termination of a tenancy is a question about whether the notice has the legal effect provided for by the Residential Tenancies Act.66 175 Absent termination under some other provision, a lessor's notice under s 70A of the Residential Tenancies Act is a necessary but not sufficient condition for the termination of the residential tenancy agreement and the tenant's right to exclusive possession of the premises. Where notice is given, the agreement, and the tenant's right, will end under s 60(1)(b)(i) of the Residential Tenancies Act if the tenant delivers up possession of the premises. Otherwise, the agreement and the tenant's right will only end under s 60(1)(b)(ii) if the court makes an order under s 72 of the Residential Tenancies Act. 176 An order terminating the residential tenancy agreement and ordering the tenant to deliver possession of the premises may only be made under s 72(2) 'upon application under this section'. Subject to a presently immaterial exception where the fixed term is less than 90 days, the court must make orders under s 72(2) where an application is made under that section. Section 72(1) provides for when an application may be made under that section. Therefore, to be empowered and required to make an order under s 72(2) of the Residential Tenancies Act in favour of a lessor, the court must be satisfied of the following matters: (a) the residential tenancy agreement creates a tenancy for a fixed term; (b) the lessor has given 'notice of termination under' s 70A; (c) the tenant failed to deliver up possession of the premises on the 'possession day'; and (d) the application to the court was made within 30 days after the 'possession day'. 65 Appeal ts 96 - 97. 66 See, for example, Puttick v The State of Western Australia [2026] WASCA 52 [204]. -- 44 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 45 177 A purported notice of termination will only have the above legal effect if it is properly characterised as a notice of termination under s 70A of the Residential Tenancies Act. If the purported notice has that character, it will have the legal effect provided for in the Residential Tenancies Act and be a valid notice. 178 The above analysis answers the question about whether the validity of a termination notice can be challenged in an application under s 72 of the Residential Tenancies Act. The question of validity is a question of whether a purported notice is properly characterised as a notice of termination under s 70A of the Residential Tenancies Act. A condition for the power and obligation of the Magistrates Court to make an order under s 72(2) is that the lessor has given 'notice of termination under' s 70A. That is, the 'validity' of a purported notice is a matter of which the Magistrates Court must be satisfied before it has the power and duty to make orders terminating the residential tenancy agreement and for the tenant to give possession of the leased premises to the lessor. The Magistrates Court is both empowered and required to determine that question. Contrary to the Authority's submission, in determining that question, the Magistrates Court is not determining the validity of 'an administrative act that was merely an incident in determining other issues'. It is determining whether a condition to its power and duty to make orders under s 72(2) has been met. 179 The above views depart in some respects from those adopted by the learned primary judge. However, his Honour's answer to the amended question was not wrong. The answer to that question is that the Magistrates Court cannot conduct a review of the Authority's decision to issue a notice under s 70A by reference to the considerations agitated by question 1. Those considerations are whether the Authority is required to afford procedural fairness prior to deciding to issue a notice and to make a decision that is legally reasonable. As the Authority's power to issue a notice is not conditioned by either requirement, the Magistrates Court cannot review the decision to issue a notice by reference to those requirements. The learned primary judge's answer to question 2 was correct in its terms for that reason. -- 45 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 46 Did the primary judge have power under O 31 r 8(4) to send a question back to the Magistrates Court for amendment? (ground 4) 180 By ground 4 and his submissions in support of that ground, Mr Garlett contends that the learned primary judge did not have the power to remit question 2 to the Magistrates Court and direct that it be amended in the terms his Honour set out. 181 The Authority contends that the learned primary judge did have that power under O 31 r 8(4) of the Rules of the Supreme Court 1971 (WA). Rule 8 provides: 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. -- 46 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 47 182 Mr Garlett points out that s 25 of the Residential Tenancies Act gives magistrates a discretion as to whether to reserve a question of law to the Supreme Court. Section 25 provides: 25. Reservation of question of law (1) A competent court hearing proceedings may reserve any question of law for the decision of the Supreme Court. (2) Any costs arising from the reservation of any question under this section, including any costs incurred by the parties to the proceedings, shall be charged to the Consolidated Account and this subsection, without any further appropriation, shall be sufficient authority for any such payment. 183 Mr Garlett submits that it was not open to the primary judge to require the magistrate to, in effect, exercise that discretion and to exercise it in a particular way. 184 There is merit in Mr Garlett's submission. However, it is unnecessary to reach a final view. That is because it would have been open to the learned primary judge to answer the original question 2 by saying that a magistrate cannot consider whether a decision of the Authority to issue a notice under s 70A was invalid because it was made in breach of an implied condition of procedural fairness or legal reasonableness. 185 For the same reason, it is unnecessary to consider the parties' additional arguments as to the applicability of O 31 r 8 and whether there was an alternative source of power. Did the amended question arise? (ground 5) 186 Ground 5 contends that, even if the learned primary judge did have power to remit question 2 to the Magistrates Court for amendment, the amended question did not arise in this proceeding, and his Honour therefore erred in deciding it. 187 The core of this ground is Mr Garlett's contention that it is inapt to describe a magistrate's determination of whether a notice issued under s 70A is valid as involving a 'collateral challenge' or a 'collateral review'. -- 47 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 48 188 In our view, this is a complaint of form and not substance. Both the original question 2 and the amended question sought to ask whether, if the Authority's power to issue a termination notice under s 70A was impliedly conditioned, the magistrate was able to determine whether those conditions had been met. 189 There is no merit in this ground. Notice of contention Did the primary judge err in finding that a presumption arises? (Contention ground 1) 190 Ground 1 of the notice of contention asserts, in effect, that the primary judge erred in law in his analysis, by considering whether the decision to issue the termination notice was purely the exercise of a contractual right, rather than considering the nature of the power.67 191 As this appeal turns upon the questions of statutory construction, any such analytical error would be irrelevant. 192 This ground of the notice of contention is not established. Did the primary judge err in finding that the decision could prejudice Mr Garlett's interests? (Contention ground 2) 193 Ground 2 of the notice of contention asserts that the primary judge erred in holding that the impact of terminating the fixed term tenancy and preventing a periodic tenancy coming into force under s 76C(2) of the Residential Tenancies Act was sufficient to answer the description of a decision which may destroy or prejudice Mr Garlett's interests. 194 The Authority submitted that the decision to issue a termination notice under s 70A was not apt to destroy or prejudice Mr Garlett's rights or interests because, at the time the notice was issued, he did not have a right of possession beyond the agreed fixed term. 195 We accept that, in one sense, the decision did not alter Mr Garlett's legal rights. Under the agreement as regulated by the Residential Tenancies Act, Mr Garlett had a right to remain in the premises during the term of the agreement (subject to conditions not here relevant), and, if the agreement was not terminated under s 60(1)(b), he would then have a right to remain in the premises under a periodic tenancy after the 67 WAB 67 - 68 (See Authority's submissions [67] - [69]). -- 48 of 49 -- [2026] WASCA 102 JUDGMENT OF THE COURT Page 49 fixed term expired. The issuing of the termination notice did not alter those rights. However, the decision plainly affected Mr Garlett's interests. The issuing of the notice was the first step in a process that, if followed, would lead to Mr Garlett's tenancy being terminated. 196 Ground 2 of the notice of contention is not established. Conclusion and orders 197 For these reasons, we would dismiss the appeal. 198 We would hear from the parties as to costs. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. DH Associate to the Hon Justice Archer 24 JULY 2026 -- 49 of 49 --