ROE -v- HOCKTON [2026] WASCA 106

[2026] WASCA 106 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ROE -v- HOCKTON [2026] WASCA 106 CORAM : MITCHELL JA VAUGHAN JA HEARD : 22 JULY 2026 DELIVERED : 22 JULY 2026 PUBLISHED : 24 JULY 2026 FILE NO/S : CACV 32 of 2026 BETWEEN : ROSEMARY ROE Appellant AND MAGISTRATE HOCKTON First Respondent HOUSING AUTHORITY Second Respondent ON APPEAL FROM: Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA Coram : SOLOMON J Citation : ROE -v- HOCKTON [2026] WASC 151 File Number : CIV 1094 of 2026 -- 1 of 15 -- [2026] WASCA 106 Page 2 Catchwords: Appeal - Practice and procedure - Residential tenancies - Appeal from refusal of application for judicial review of eviction order of the Magistrates Court of Western Australia terminating a residential tenancy agreement and requiring the tenant to deliver up possession of the leased premises - Where tenant sought a stay or suspension of enforcement of the eviction order pending determination of the appeal - Where Housing Authority had already taken possession of the leased premises following execution of a Property (Seizure and Delivery) order issued by the Magistrates Court - Whether eviction order can be stayed, or enforcement of the order suspended, when its operation is complete - Whether an order should be made requiring the lessor to give the tenant possession of the leased premises pending determination of the appeal Legislation: Civil Judgments Enforcement Act 2004 (WA), s 15 Magistrates Court Act 2004 (WA), s 35, s 36 Residential Tenancies Act 1987 (WA), s 26, s 60, s 60, s 62, s 71 Rules of the Supreme Court 1971 (WA), O 56A r 3(3)(d) Result: Application for stay refused Extension of time to file appellant's case granted subject to springing order Category: B Representation: Counsel: Appellant : In person First Respondent : No appearance Second Respondent : J D Berson Solicitors: Appellant : In person First Respondent : State Solicitor's Office Second Respondent : State Solicitor's Office -- 2 of 15 -- [2026] WASCA 106 Page 3 Case(s) referred to in decision(s): Complete Hire and Sales Pty Ltd v Terra Firma Constructions Pty Ltd [2018] WASCA 88 Durolek v Pier (WA) Pty Ltd [No 2] [2019] WASCA 138 Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179; (2016) 50 WAR 453 Jebb v Superior Lawns Australia Pty Ltd [2018] WASCA 123 Kipoi Holdings Mauritius Ltd v Kirman [2021] WASCA 194 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 Re Magistrate Trevor Darge; Ex parte Snook [2023] WASC 386 Rosenberg v Can't Escape Karma Pty Ltd [2025] WASCA 83 Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 -- 3 of 15 -- [2026] WASCA 106 REASONS OF THE COURT Page 4 REASONS OF THE COURT: 1 At a hearing on 22 July 2026, we made the orders noted at [40] below. We said that we would publish written reasons for making those orders later. These are our written reasons for making those orders. Background 2 This case involves the appellant's lease of residential premises in North Fremantle (leased premises) from the second respondent (Housing Authority) pursuant to a residential tenancy agreement. 3 The Housing Authority applied to the Magistrates Court of Western Australia for an order terminating the residential tenancy agreement and an order for possession of the premises on the ground of breach of the agreement to pay rent. Those orders were sought under s 71 of the Residential Tenancies Act 1987 (WA) (RT Act). On 10 December 2025, the first respondent (magistrate) made an order terminating the appellant's residential tenancy agreement and requiring the appellant to give possession of the leased premises to the Housing Authority by 4.00 pm on 30 January 2026 (Eviction Order). 4 On 27 January 2026, the appellant lodged an application in the General Division of this court which was treated as an application for statutory judicial review of the Eviction Order pursuant to s 36 of the Magistrates Court Act 2004 (WA) (MC Act). While there was no stay order, the Housing Authority did not take possession of the leased premises while the judicial review proceedings were pending in the General Division. 5 The appellant's judicial review application was dismissed by the primary judge on 20 April 2026 for reasons published as Roe v Hockton [2026] WASC 151. 6 A Property (Seizure and Delivery) Order - Real Property was issued by the Magistrates Court on 21 April 2026 (ie the day after the dismissal of the appellant's judicial review application). Possession of the leased premises was seized pursuant to this order on 27 May 2026. By letter to the appellant dated 27 May 2026, an officer of the Housing Authority said that it had taken possession of the property, and that she should contact the Department to arrange removal of her belongings by Friday 5 June 2026. -- 4 of 15 -- [2026] WASCA 106 REASONS OF THE COURT Page 5 7 This appeal against the order dismissing the judicial review application was commenced on 11 May 2026. 8 In an email sent to the court at 11.35 am on 25 May 2026, the appellant asked whether the appeal 'stops the Eviction (27 May 2026) this week?'. At 2.31 pm on 25 May 2026, the Court of Appeal office told the appellant that the appeal did not have that effect. The office informed the appellant of the process for applying for a stay and attached relevant forms. 9 The appellant's application for a stay or suspension was not lodged until 2 June 2026 (ie after the Housing Authority took possession of the property). Although the terms of the orders sought are not stated in the application itself, a minute of proposed order lodged on the same day sought orders: (a) staying enforcement of the Eviction Order pending the determination of this appeal; (b) requiring the bailiff to forthwith restore possession of the leased premises to the appellant pending determination of the appeal; and (c) restraining the Housing Authority from taking any further enforcement step, including instructing the bailiff, pending determination of the appeal. 10 The stay application was listed for hearing on 8 June 2026. The parties both sought to vacate that hearing, which was adjourned to 22 July 2026. On 8 June 2026, the court made programming orders which included a requirement for the appellant to file and serve her appellant's case by 29 June 2026. The appellant had not filed an appellant's case by the time of the hearing on 22 July 2026. 11 An amended registrar's notice to attend of 8 July 2026 indicated that, at the hearing on 22 July 2026, the court would consider the appellant's stay application and whether the time for the appellant to file her appellant's case should be extended. 12 Prior to the hearing, the court granted a request by the appellant (who indicated that she was in Melbourne with her sick son) to attend the hearing by telephone. -- 5 of 15 -- [2026] WASCA 106 REASONS OF THE COURT Page 6 Application to adjourn hearing 13 At the commencement of her oral submissions on 22 July 2026, the appellant made an oral application to adjourn the hearing, on the basis that she had been unable to obtain legal assistance and that a person who had been assisting her was not in court. Although she referred to having medical certificates, the appellant did not provide any indication as to why she was incapable of making oral submissions by telephone. She was able to advance oral submissions in support of her application. We were satisfied that the appellant had been given a reasonable opportunity to obtain legal assistance. We were not satisfied that it was in the interests of justice to further adjourn the hearing of the stay application. The power of this court to stay or suspend enforcement of the orders 14 Section 15 of the Civil Judgments Enforcement Act 2004 (WA) (CJE Act) empowers 'the court that gave the judgment' or 'a court dealing with an appeal against the judgment' to make an order suspending enforcement of the judgment if there are special circumstances that justify doing so. This section does not empower this court to suspend enforcement of the Eviction Order as there is no appeal from the Magistrates Court to this court. Rather, this appeal is against the orders of the primary judge dismissing the judicial review application to the General Division of this court. 15 In these circumstances, any power of this court to stay or suspend the enforcement of the Eviction Order must derive from its implicit power to make orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of its jurisdiction.1 16 It has been held that, where proceedings are pending in this court between the parties to an appeal, the Court of Appeal division may exercise the court's power to make such procedural directions in those proceedings as are necessary for the purpose of preserving the integrity of the exercise of the court's appellate jurisdiction.2 This court has exercised statutory powers to extend time in order to preserve the subject matter of the appeal where doing so was within the scope of the statutory power.3 The court has also exercised a statutory power to vary a deed of 1 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 [35]. 2 Jebb v Superior Lawns Australia Pty Ltd [2018] WASCA 123 [63]. 3 See Complete Hire and Sales Pty Ltd v Terra Firma Constructions Pty Ltd [2018] WASCA 88 [9]. -- 6 of 15 -- [2026] WASCA 106 REASONS OF THE COURT Page 7 company arrangement in order to preserve the effective exercise of its appellate jurisdiction.4 17 Similarly, on an appeal from the determination of an application under s 36 of the MC Act, it is open for this court to exercise the power conferred by O 56A r 3(3)(d) of the Rules of the Supreme Court 1971 (WA) to stay the Magistrates Court proceedings where doing so is necessary to preserve the effective exercise of this court's appellate jurisdiction. The power to stay those proceedings would encompass staying the enforcement of orders made in those proceedings. 18 The organising principles on which this court determines whether it will grant or refuse a stay are well established and apply equally to the various available sources of power to order a stay.5 19 Broadly speaking, there are three primary considerations: 1. Whether a stay is necessary to preserve the subject matter of the appeal - ie whether, without the stay, the appeal might be rendered nugatory. In this respect the term 'nugatory' is used in the sense of indicating that a stay is necessary to preserve the subject matter or the integrity of the litigation or as indicating that, at the least, refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. 2. Whether the appeal has reasonable prospects of success. 3. Whether the balance of convenience favours the grant of the stay. The central issue will generally be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation. In this respect, speaking broadly, the essential question is whether - having regard to the likely practical consequences as well as the legal consequences - the appeal would be futile unless a stay was granted.6 Disposition of stay application 20 A difficulty for the appellant is that she only applied for the stay or suspension of enforcement of the Eviction Order after it had been fully 4 Kipoi Holdings Mauritius Ltd v Kirman [2021] WASCA 194 [50] - [51]. 5 Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9]; Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 [22] - [23]. 6 See Rosenberg v Can't Escape Karma Pty Ltd [2025] WASCA 83 [40] - [41]. -- 7 of 15 -- [2026] WASCA 106 REASONS OF THE COURT Page 8 executed. Possession of the leased premises has been seized under the CJE Act and returned to the Housing Authority. 21 Pursuant to s 60(1)(a)(ii) and s 71 of the RT Act, the Eviction Order had the effect of bringing the residential tenancy agreement to an end and entitling the Housing Authority to take possession of the leased premises. The Housing Authority has taken possession of the leased premises. An order of this court staying or suspending enforcement of the Eviction Order would not oblige the Housing Authority to return possession of the leased premises to the appellant in these circumstances. 22 Nor can this court make the order proposed by the appellant requiring the bailiff to restore possession of the leased premises to the appellant. Possession has already passed to the Housing Authority. As such, the bailiff is unable to restore possession of the leased premises. Separately, the appellant's proposed order restraining the Housing Authority from taking any further enforcement step would have no utility in circumstances where no further steps are required to enforce the Eviction Order. 23 To have any practical effect, an interim order of this court would need to require that the Housing Authority (rather than the bailiff) give possession of the leased premises to the appellant until the determination of the appeal. However, there are several impediments to making such an order: 1. There is no discernible legal basis on which the appellant would hold possession if such an interim order were made, when the Eviction Order terminates the residential tenancy agreement and has not been set aside. 2. It is not apparent that an order for the return of the leased premises is necessary to preserve the effective exercise of this court's appellate jurisdiction. The court would more clearly have power to make a consequential order for return of premises if the Eviction Order were set aside on appeal. Doing so would be based on reversal of judgment restitutionary relief following a successful appeal which set aside the Eviction Order - not mere interlocutory relief of the kind presently sought. 3. The difficulties which would arise from the unclear status of the appellant's possession of the premises under an interim order count strongly against a conclusion that the balance of convenience favours making such an order. That is particularly -- 8 of 15 -- [2026] WASCA 106 REASONS OF THE COURT Page 9 so where the appellant has not deposed as to the practical impact upon her of the loss of possession of the leased premises pending the determination of the appeal. For example, the appellant has not given evidence as to the extent to which other accommodation arrangements might be available to her while the appeal is determined. It appears from the appellant's submission that she is currently living in Melbourne while one of her children is in hospital there. 4. Affidavits sworn by an officer of the Housing Authority on 19 June 2026 and 15 July 2026 indicate that the leased premises are not currently in a safe and habitable condition. Works are required to be undertaken over 1 - 3 months before another tenant can move into the property. The appellant's personal belongings, other than perishable goods, have not yet been removed by the Housing Authority. Submissions filed by the Housing Authority indicate that it is prepared to give an undertaking that it will not remove the appellant's belongings from the leased premises until the outcome of this appeal is determined. Of course, it is open to the appellant to arrange to collect her personal belongings in the meantime. These factors count strongly against a conclusion that the balance of convenience favours making such an order. 24 Further, the appellant has not demonstrated that the appeal has a reasonable prospect of succeeding. On the material presently before the court, there is no arguable basis for concluding that the primary judge erred in any material respect. 25 Under s 26(1) of the RT Act, no appeal lies from the Eviction Order. Under s 35 of the MC Act, certiorari does not lie in respect of the Eviction Order. Under s 26(2) of the RT Act, no declaratory judgment shall be given and no order shall be made under s 36 of the MC Act: unless the Supreme Court is satisfied that the Magistrates Court had or has no jurisdiction conferred by or under this Act in respect of the proceedings or that a party to the proceedings has been denied natural justice. 26 The effect of these provisions is that the primary judge could only have made an order setting aside the Eviction Order if satisfied that it was infected by jurisdictional error. His Honour recognised this -- 9 of 15 -- [2026] WASCA 106 REASONS OF THE COURT Page 10 limitation, correctly adopting the following passages of the reasons of Seaward J in Re Magistrate Trevor Darge; Ex parte Snook:7 [Section] 26(2) of the RT Act modifies the application of s 36 of the MC Act in relation to matters arising under the RT Act, by providing that no order shall be made under s 36 of the MC 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 RT 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. 27 The primary judge identified six issues raised by the application. The first three alleged errors concerned the manner in which the respondent had calculated the amount of rent charged.8 The sixth issue concerned the use of a non-prescribed form for the residential tenancy agreement.9 Even if the primary judge wrongly decided that the magistrate had not erred in the manner alleged in dealing with these issues, the alleged errors were clearly not jurisdictional errors which could have allowed the court to set aside the Eviction Order. 28 The fourth issue identified by the primary judge was a suggestion in the appellant's submissions that she was denied procedural fairness. 7 Re Magistrate Trevor Darge; Ex parte Snook [2023] WASC 386 [30] - [31]. 8 Primary decision [16] - [26]. 9 Primary decision [32] - [34]. -- 10 of 15 -- [2026] WASCA 106 REASONS OF THE COURT Page 11 The transcript of the hearing in the Magistrates Court was before the primary judge.10 His Honour said:11 Having carefully read the transcript and the material before the magistrate, I do not accept that there was any denial of procedural fairness to [the appellant], who was given ample opportunity before the magistrate and did indeed raise her grievances about the Housing Authority's conduct. 29 Our review of the transcript of the Magistrates Court proceedings does not indicate any basis on which it might reasonably be contended that the magistrate denied procedural fairness to the appellant. No arguable basis for reaching such a conclusion was suggested by the appellant's draft grounds or submissions in support of the stay application. 30 The fifth issue identified by the primary judge concerned whether the magistrate had considered, and reasonably been satisfied of, the statutory requirements for making the Eviction Order. Such an error, if established, would be jurisdictional. 31 So far as is material in the present case, the RT Act makes the following provision for termination of a residential tenancy agreement for failure to pay rent: 1. Under s 62(1), a lessor may give notice of termination of a residential tenancy agreement to the tenant on the ground that the tenant has breached a term of the agreement and the breach has not been remedied. 2. Under s 62(4)(a), notice of termination on the ground of a breach of the agreement to pay rent is ineffectual unless a notice specifying the breach of the agreement and requiring payment of the rent is given to the tenant not less than 14 days before the notice of termination is given. This is subject to a presently immaterial exception provided for in s 62(5) of the RT Act. 3. Under s 71(1), where the lessor gives notice of termination to the tenant, and the tenant fails to deliver up possession of the premises on the day specified, the lessor may, within 30 days after that day, apply to the Magistrates Court for an order 10 Annexed to the affidavit of Mark Turtle sworn 27 March 2026. 11 Primary decision [27]. -- 11 of 15 -- [2026] WASCA 106 REASONS OF THE COURT Page 12 terminating the agreement and an order for possession of the premises. 4. Under s 71(2), the Magistrates Court shall, upon application under s 71, make an order terminating the agreement and an order for possession of the premises, if it is satisfied: (a) the notice of termination was given by the lessor to the tenant and it complied with and was given in accordance with the RT Act. (b) the lessor has established a breach of the agreement to pay rent and the breach is in all the circumstances such as to justify termination of the agreement. 32 The Magistrates Court transcript indicates that the following matters were established by uncontested evidence: 1. On 5 August 2013, the appellant and the Housing Authority entered into a residential tenancy agreement for the leased premises with a condition that:12 The tenant must pay rent on time or the lessor may issue a notice of termination, and if the rent is still not paid in full, the lessor may take action through the court to evict the tenant. The tenant must not withhold rent because the tenant is of the view that the lessor is in breach of the agreement. 2. On 13 June 2024, the Housing Authority gave notice to the appellant which complied with the formal requirements of s 61 of the RT Act stating that the appellant then owed $6734.79 in rent arrears and was in breach of the residential tenancy agreement. The notice required the appellant to pay this outstanding rent without delay, and in any event, within 14 days.13 3. On 6 August 2024, the Housing Authority served a notice of termination on the appellant on the ground that she had breached the agreement to pay rent which remained unpaid. The notice required the appellant to deliver up vacant possession of the leased premises by 22 August 2024.14 12 Magistrates Court ts 6. 13 Magistrates Court ts 7 - 9. 14 Magistrates Court ts 9 - 10. -- 12 of 15 -- [2026] WASCA 106 REASONS OF THE COURT Page 13 4. The appellant had not paid the rent required by the agreement.15 The appellant, when asked, said that there was a 'valid reason' for the non-payment, namely, that as a sovereign Aboriginal woman she had a right to ask colonisers to 'come to an agreement'.16 33 The magistrate made findings as to each of the above requirements.17 His Honour found the matters relied on by the appellant for not paying rent - including her status as a First Nations person, her age (63), health conditions, the fact that she was a single parent with two children and the abusive and intimidating environment in which the leased premises was located - did not justify a refusal to pay rent under the agreement.18 The magistrate concluded:19 I am satisfied that there are grounds for [the appellant's] tenancy to be terminated because of the non-payment of rent. I'm satisfied that she has been given appropriate notice of the termination, the breach, and that as a consequence of that breach, the tenancy is at risk of being terminated. And I'm satisfied in those circumstances that the tenancy should be terminated and it will be terminated. 34 It is therefore apparent that the magistrate considered all of the matters referred to at [31] above. His Honour was satisfied, and it was open on the evidence for the magistrate to be satisfied, of all of the requirements for making the Eviction Order. The primary judge correctly rejected the submission that the magistrate failed to consider mandatory relevant considerations under the RT Act and made a decision that was legally unreasonable.20 35 The appellant's draft grounds of appeal and submissions, filed pursuant to programming orders of this court, do not identify any ground for contending that Solomon J erred in dismissing the judicial review application. Rather, they are directed towards the way the Property (Seizure and Delivery) Order – Real Property was issued and executed. The draft grounds operate on the incorrect assumption that the appellant was entitled to procedural fairness before the Eviction Order was enforced. In any event, some defect in the enforcement of the Eviction Order could not form a basis for allowing the appeal against the decision of Solomon J. 15 See, for example, Magistrates Court ts 10, 24, 47 - 48, 52. 16 Magistrates Court ts 48. 17 Magistrates Court ts 79 - 80. 18 Magistrates Court ts 80 - 82. 19 Magistrates Court ts 82. 20 Primary decision [28] - [31]. -- 13 of 15 -- [2026] WASCA 106 REASONS OF THE COURT Page 14 36 Having regard to the lack of apparent merit in the appeal, and the other matters referred to at [20] - [23] above, we were not satisfied that it was in the interests of justice to make any of the orders sought by the appellant's application. Nor were we satisfied that an order should be made requiring the Housing Authority to give the appellant possession of the leased premises pending determination of the appeal. Extension of time to file appellant's case 37 We were not satisfied that it was in the interests of justice to dismiss the appeal for failure to comply with the requirement to file an appellant's case at this stage. Given the history of the proceedings, we considered that an extension of time should be granted but that this should be a final opportunity to file a compliant appellant's case. We decided that the extension of time should be subject to a self-executing order. If the appellant fails to avail herself of this opportunity, and does not file a compliant appellant's case by the extended time provided for, the appeal will automatically be dismissed. 38 In deciding that the extension of time will be subject to a self- executing order we considered and applied the principles set out in Firmware Technologies Inc v Asia Platinum Group Ltd,21 and Durolek v Pier (WA) Pty Ltd [No 2].22 We were satisfied, in particular, that a self-executing order is necessary to enable the court to hear and determine the appeal fairly and justly. This court cannot carry out its appellate function without properly formulated grounds of appeal and the other matters provided for in a compliant appellant's case. 39 The appellant has already failed to file an appellant's case in the time required by the rules and the order made by this court on 8 June 2026. Given the undertaking offered by the Housing Authority, the appellant is obliged to prosecute the appeal with reasonable expedition. In these circumstances, we were satisfied that it is in the interests of justice to make a self-executing order at this stage. 21 Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179; (2016) 50 WAR 453 [5], [42], [48]. 22 Durolek v Pier (WA) Pty Ltd [No 2] [2019] WASCA 138 [107] - [108], [111] - [113]. -- 14 of 15 -- [2026] WASCA 106 REASONS OF THE COURT Page 15 Orders 40 For the above reasons, at the hearing of the application, we made the following orders: 1. The appellant's oral application for an adjournment of the hearing on 22 July 2026 is refused. 2. UPON the undertaking of the second respondent that it will not remove the appellant's belongings from the leased premises until the outcome of this appeal is determined, the appellant's application in an appeal filed on 2 June 2026 is dismissed. 3. The costs of the application be reserved. 4. The time for the appellant to file and serve her appellant's case is extended to 4.00 pm on 12 August 2026 and the appellant must file and serve an appellant's case that complies with the Supreme Court (Court of Appeal) Rules 2005 (WA) by that time. 5. If the appellant does not comply with order 4 of these orders, then automatically and with immediate effect from the time of non- compliance: (a) the appeal is dismissed; (b) the appellant is to pay the second respondent's costs of the appeal, including any reserved costs, such costs to be assessed. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. LK Associate to the Hon Justice Mitchell 24 JULY 2026 -- 15 of 15 --