ROE -v- HOCKTON [2026] WASC 151

[2026] WASC 151 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : ROE -v- HOCKTON [2026] WASC 151 CORAM : SOLOMON J HEARD : 20 APRIL 2026 DELIVERED : 20 APRIL 2026 PUBLISHED : 24 APRIL 2026 FILE NO/S : CIV 1094 of 2026 BETWEEN : ROSEMARY ROE Applicant AND MAGISTRATE HOCKTON First Respondent HOUSING AUTHORITY Second Respondent Catchwords: Residential Tenancies Act 1987 - Termination of tenancy - Review under s 36 of the Magistrates Court Act 2004 - Jurisdictional error - Denial of procedural fairness -- 1 of 10 -- [2026] WASC 151 Page 2 Legislation: Magistrates Court Act 2004 (WA) Residential Tenancies Act 1987 (WA) Rules of the Supreme Court 1971 (WA) Result: Application dismissed Category: B Representation: Counsel: Applicant : In Person First Respondent : No appearance Second Respondent : Mr J Carroll Solicitors: Applicant : In Person First Respondent : State Solicitor's Office Second Respondent : State Solicitor's Office Cases referred to in decision: Re Magistrate Trevor Darge; Ex parte Snook [2023] WASC 386 Snook v Roberts [2022] WASC 196 -- 2 of 10 -- [2026] WASC 151 SOLOMON J Page 3 SOLOMON J: (This judgment was delivered extemporaneously and has been edited from the transcript to include references, headings and to correct matters of grammar and expression.) Introduction 1 This proceeding is an application by the applicant, Ms Rosemary Roe (Ms Roe), for judicial review of a decision of the Magistrates Court made on 10 December 2025, in relation to a residential tenancy agreement for premises in North Fremantle. The learned magistrate made orders that Mr Roe's tenancy shall terminate and that Ms Roe deliver up possession of the premises to the second respondent, the Housing Authority. 2 By application dated 27 January 2026, the applicant sought judicial review of that decision. On 30 January 2026, the matter came before Strk J. Her Honour made orders that the application stand as an application made pursuant to s 36 of the Magistrates Court Act 2004 (WA) (Magistrates Court Act) and Order 56A of the Rules of the Supreme Court 1971 (WA). Her Honour made a further order that the application for a review order and a final order be heard at the same time. Background 3 The background to the application may be stated in brief overview. 4 Ms Roe entered into a social housing residential tenancy agreement (the tenancy agreement) with the Housing Authority as lessor, to commence on 5 August 2013. Under the terms of the tenancy agreement, the rent was stated to be 25% of the total household assessable income assessed from time to time, or the market rent at the time of the assessment, whichever is the lower amount. Under cl 60 of the tenancy agreement, the tenant was to advise the Housing Authority of any change in income. Clause 60.4 provided that the Housing Authority was entitled to increase or decrease the rent effective immediately if there was any change in the total household assessable income. 5 A document referred to as the 'Rent Policy' was referred to in cl 2 (the provision dealing with rent), and in other clauses. Clause 60.5 -- 3 of 10 -- [2026] WASC 151 SOLOMON J Page 4 provided expressly that the Rent Policy was deemed to be incorporated into the tenancy agreement to apply to and form part of the agreement as if it had been fully set out in the agreement. 6 Clause 60.7 provided that if there was to be any change in the method for calculating the rent, then 60 days' notice was required to be given of the change in method. That is consistent, in any event, with the provisions of the Residential Tenancies Act 1987 (WA) (Residential Tenancies Act). 7 The Rent Policy was Annexure A to the tenancy agreement. The full title of the Rent Policy is 'Social Housing Tenancy Agreement Rent Policy'. Item 7 of the Rent Policy set out the basis for calculation of the income upon which the 25% is assessed. It is plain that the household income on which the 25% was assessed included income of 'tenants and partners' including statutory income, and income of household members over the age of 21. The rent also included 10% of income of household members under 21 years of age. 8 By notice dated 13 June 2024, the Housing Authority gave notice to Ms Roe of a breach of the tenancy agreement by the failure to pay rent in the sum of $6734.79. The notice required Ms Roe to remedy that matter within 14 days and threatened that, if that was not done, she may be evicted from the home and face legal action to recover the debt. 9 The amount demanded in the notice of 13 June 2024 was not paid within the 14 days or, indeed, it seems, at all. By letter and notice dated 6 August 2024, the Housing Authority gave notice of the termination of the residential tenancy agreement by reason of the failure to comply with the notice of 13 June 2024. 10 Ms Roe did not deliver the premises to the Housing Authority, and the Housing Authority issued proceedings in the Magistrates Court for orders for the termination of the tenancy agreement and delivery up of the premises. That application was brought under div 4, and in particular, s 71 of the Residential Tenancies Act. 11 The matter came before Magistrate Hockton of the Magistrates Court on 10 December 2025. The magistrate was satisfied of the matters required to be addressed under s 71 of the Residential Tenancies Act, and made orders terminating the residential tenancy and requiring delivery up of the residential premises. -- 4 of 10 -- [2026] WASC 151 SOLOMON J Page 5 Relevant principles 12 The relevant principles applicable under s 36 of the Magistrates Court Act are not controversial. They are referred to in Snook v Roberts,1 and Re Magistrate Trevor Darge; ex-parte Snook.2 13 The central points are expressed at [30] - [31] of Re Magistrate Trevor Darge; ex-parte Snook as follows:3 [Section] 26(2) of the [Residential Tenancies Act] modifies the application of s 36 of the [Magistrates Court Act] in relation to matters arising under the [Residential Tenancies Act], by providing that no order shall be made under s 36 of the [Magistrates Court Act] unless the Supreme Court is satisfied that: (a) the Magistrates Court had or has no jurisdiction conferred by or under the Act in respect of the proceedings; or (b) that a party to the proceedings has been denied natural justice. The legal principles in relation the application of s 36 of the MC Act were explained in Rayney v AW [2009] WASCA 203 [25] - [34] and Bajaj v Magistrate Trevor Darge [2021] WASCA 218 [47] - [54]. I have not repeated those here, save to say that: (a) the reference to 'no jurisdiction' in s 26(2) of the [Residential Tenancies Act] should be taken to mean jurisdictional error; (b) at the first stage in the process the court is empowered to make a review order requiring the decision-maker to show cause if the material before the court demonstrates an arguable case in relation to a ground of jurisdictional error or a denial of natural justice. That is, if the material demonstrates that the case has reasonable prospects of success; and (c) an application under s 36 is concerned only with the legality of decisions, and not the merits. 14 As those decisions make clear, the reference to no jurisdiction in s 26 of the Residential Tenancies Act is to be understood to mean jurisdictional error. An application under s 36 is concerned with the legality of the decision of the magistrate, not its merits. That is a matter that is important to emphasise. It is not my role to review the merits of the decision of the magistrate. It is reviewed for jurisdictional error or any denial of procedural fairness. 1 Snook v Roberts [2022] WASC 196. 2 Re Magistrate Trevor Darge; Ex parte Snook [2023] WASC 386. 3 Re Magistrate Trevor Darge; Ex parte Snook [30] - [31]. -- 5 of 10 -- [2026] WASC 151 SOLOMON J Page 6 Determination of application for judicial review 15 Ms Roe pointed to a number of matters in respect of which she submitted that the magistrate had made an error and thereby lacked jurisdiction. I will put to one side whether each alleged error, of itself, would constitute an absence of jurisdiction, because in this matter it is not necessary to make that distinction. That is because, as I will explain, I do not consider that Ms Roe has demonstrated any error. First issue 16 The first issue about which Ms Roe complains is what was referred to as double charging. Ms Roe's evidence was that she receives her statutory income on a fortnightly basis. She complained that the 25% rent was calculated on the basis of her fortnightly income, but was then charged weekly, thereby overcharging her or, indeed, charging her double what she was required to pay. That issue was canvassed quite extensively before the magistrate. 17 The learned magistrate rejected the allegation the Housing Authority had made that error. The magistrate made his own independent (albeit estimated) calculation, from which he concluded that no error had been demonstrated in the calculation of the rent by the Housing Authority. 18 Counsel for the Housing Authority took me to the evidence provided by Ms Roe herself in her affidavit filed and relied upon in this application.4 The affidavit annexed a record of an ABSTUDY payment received by Roe. Ms Roe's evidence was that she received that payment on a fortnightly basis. Counsel for the Housing Authority then took me to correspondence from the Housing Authority from approximately three or four months thereafter, which advised of an increase in rent and set out the basis for the calculation of that rent. It is plain from the figures in that correspondence that the Housing Authority adopted a figure of 50% of what, on Ms Roe's evidence, was the fortnightly amount that she received in relation to the ABSTUDY allowance. It follows that the Housing Authority charged rent on the basis of 25% of the funds received by Ms Roe. 19 Notwithstanding Ms Roe's complaints, there is no evidence before me that the Housing Authority made the error of which Ms Roe 4 Affidavit of Rosemary Carmel Roe (3 March 2026). -- 6 of 10 -- [2026] WASC 151 SOLOMON J Page 7 complains. Nor is there is evidence that the magistrate made an error on the material before him. 20 Accordingly, in my view, the magistrate made no error, jurisdictional or otherwise, in respect of the issue of double charging. Second issue 21 The second issue raised by Ms Roe was a submission that the various increases were invalid because requisite notice of the increases was not given. The relevant section of the Residential Tenancies Act is s 31A which, consistent with the provision of the lease to which I have referred, provides that 60 days' notice is required in respect of a change to the method by which the rent is calculated. 22 By and large, the method by which the rent was calculated (that is, by reference to 25% of the household income) did not change and, therefore, s 31A was not enlivened. There was one occasion when it was enlivened, and that was dealt with by the requisite notice which appeared in Ms Roe's affidavit. 23 On the evidence before me, it appears that the Housing Authority did give notice of increases in rent (using the same method). They were not given with 60 days' notice. However, 60 days' notice of those sorts of increases were not required under the Residential Tenancies Act or under the tenancy agreement (because they were not changes to the method of charging rent). 24 Ms Roe appears aggrieved that she was not given a 60 day notice period of increases. However, neither the Residential Tenancies Act nor the tenancy agreement required that to be done. Therefore, the learned magistrate was not in error on the material before him or, indeed, on the material before me in respect of his conclusion that there was no invalidity in the increases or otherwise anything untoward in the Housing Authority's rent increases that it imposed upon the tenant. Third issue 25 The third issue about which Ms Roe was concerned was market rent and backdating. In the evidence before the magistrate, and indeed, on the evidence before me which appeared in Ms Roe's own affidavit, the market rent was charged to Ms Roe because she had not provided information in relation to her household income to the Housing Authority. Therefore, under the tenancy agreement, it defaulted to the market rent. However, when the information was ultimately provided, -- 7 of 10 -- [2026] WASC 151 SOLOMON J Page 8 the difference between the market rent and the rent by reference to the household income, was credited back to Ms Roe. 26 The evidence, such as it was before the Magistrates Court, suggested that the rent was not in any event actually paid by Ms Roe. It was only debited to her and then credited back to the extent that it did not reflect market rent. Ms Roe complained before me that the additional rent was in fact taken from her Centrelink allowances. However, there was no evidence of that before the magistrate, and indeed, no evidence of that before me. Accordingly, in my view, there was no error, less still jurisdictional error, in the conclusions of the magistrate in relation to market rent. Issue of procedural fairness 27 There seems also to be some suggestion in Ms Roe's submissions that she was denied procedural fairness, which, as I have explained, would be a basis to challenge the decision of the magistrate. Having carefully read the transcript and the material before the magistrate, I do not accept that there was any denial of procedural fairness to Ms Roe, who was given ample opportunity before the magistrate and did indeed raise her grievances about the Housing Authority's conduct. Issue of mandatory relevant considerations 28 There also seems to be a suggestion that the magistrate failed to consider mandatory relevant considerations under the Residential Tenancies Act and that the magistrate's decision was not legally reasonable. 29 The matters required to be considered by the magistrate are set out in s 71 of the Residential Tenancies Act. 30 In summary, the magistrate was required to give consideration to and be satisfied of three things. First, whether the notice of termination given to Ms Roe on 6 August 2024 had been complied with and given in accordance with the provisions of the Residential Tenancies Act. Secondly, whether the Housing Authority had established the ground it relied upon to issue the notice of termination - namely, that Ms Roe had failed to pay rent in the sum of $6734.79. Thirdly, if those matters were established, whether the relevant breach of the residential tenancy agreement - that is, the failure to pay the sum of $6734.79 in rent - was one that justified termination of the residential tenancy agreement. The magistrate was satisfied of each of those elements. -- 8 of 10 -- [2026] WASC 151 SOLOMON J Page 9 31 In my view, there was no error demonstrated in the magistrate's conclusion that each of the elements required by s 71 was satisfied. Issue of prescribed form 32 A further issue was raised on behalf of Ms Roe that, by not adopting the prescribed form of a residential tenancy agreement under s 27A of the Residential Tenancies Act, the Housing Authority had somehow acted unlawfully. 33 In support of that submission, it was said that regulation 5AB, which exempted the Housing Commission from adopting the standard form prescribed by s 27A, was unconstitutional because there was no authority in the regulations to override the Act. I do not accept that submission. Section 6 plainly enables regulations to be made in the manner that permits regulation 5AB. 34 That matter was not in fact raised before the magistrate, or at least not in those terms, nor was it raised in written submissions, but for the reasons explained, in any event, it is not a submission I would be prepared to accept. Conclusion 35 I want to emphasise that the decision I have come to is not a matter of whether I consider that the applicant is in difficult or unfortunate circumstances. As I have explained in the course of argument, this application requires the court to consider the legal merits of the magistrate's decision, and whether there is legal error in the magistrate's decision. It is not concerned otherwise with the merits of the matter. 36 In all the circumstances, I am not satisfied that the applicant has shown any jurisdictional error, or indeed any error, or any denial of procedural fairness in his decision. Accordingly, the application is dismissed. -- 9 of 10 -- [2026] WASC 151 SOLOMON J Page 10 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. MS Associate to the Honourable Justice Solomon 24 APRIL 2026 -- 10 of 10 --