Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Appeal - Magistrates Court - Summary judgment - Restitution - Mistake

Magistrates Court (Civil Proceedings) Act 2004, s 18

Aboyne Pty Ltd v Dixon Homes Pty Ltd [1980] Qd R 142

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Ayres v Hughes [2008] WASC 306

Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529

Butler v Bennett [2007] WADC 107

Caboolture Park Shopping Centre Pty Ltd (In Liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 [14]; [2000] HCA 47; (2000) 203 CLR 194

Cold Stores Ltd v Electricity Trust of South Australia [1957] HCA 69; (1957) 98 CLR 65

David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353

Deputy Commissioner of Taxation (Cth) v Robinswood [2001] WASC 191; (2001) 24 WAR 284

Evans v Miller [2011] WASCA 89

FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268

Gibson v Perceptions (1988) 6 SR(WA) 255

Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1

Hall v Hall [2007] WASC 198

Hoskins v Armstrong [2008] WADC 168

House v R [1936] HCA 40; (1936) 55 CLR 499

Hunt v Knabe (No 2) (1992) 8 WAR 96

Longdate v Danby [1982] 3 All ER 129

Lydon v Lydon [2007] WADC 122

Lydon v Lydon [2008] WADC 61

Meek v Guardian Assurance Co Ltd (1964) 80 WN 940

Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513

Pearce v Button [1986] FCA 51; (1986) 8 FCR 408

Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) 28 FLR 195

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28

Racovalis v Rescom Mortgages Pty Ltd [2010] VSCA 55

Ravi v Armerind Pty Ltd [2006] WADC 84

Regan v Gibson [2010] WADC 144

Tremelbye (Selangor) Rubber Co Ltd v Stekel [1971] 1 WLR 226

Ventureaxess Capital Pty Ltd v RM Capital Pty Ltd [2005] WADC 128

Wood v Public Trustee (1995) 14 WAR 251

Wright v Doe d. Tatham [1834] 1 AD & E 4

1 COMMISSIONER GETHING: The present appeal is from a decision of her Honour Magistrate Hawkins on 23 May 2011 dismissing an application dated 21 December 2010 by the appellant pursuant to Magistrates Court (Civil Proceedings) Act 2004 (WA) s 18(6) (MCCPA). That subsection empowers a magistrate to set aside a judgment given summarily under MCCPA s 18. The summary judgment was given by his Honour Magistrate Cockram on 20 December 2010.

2 The appellant sought repayment of money paid by her to the respondent under a mistake. A company of which the appellant is a director, Computer Accounting & Tax Pty Ltd (CAT), owed the respondent $18,247.59 by reason of a costs order in the Supreme Court Action CIV 1216 of 2009 made in September 2009. The respondent made a statutory demand for this amount on CAT in December 2009. On 21 January 2010 a provisional liquidator was appointed to CAT. The appellant asserts that she paid the money to the respondent after the liquidator of CAT advised her that she was personally responsible for this debt of CAT.

3 The Notice of Appeal as filed set out 9 grounds of appeal. At the commencement of the hearing before me, counsel for the appellant said that the appellant would now only rely on five of them being grounds 1, 2, 3, 6 (though not par (g)) and 8.

4 An appeal pursuant to MCCPA s 40(1) is by way of a 'reconsideration of the evidence' that was before the Magistrates Court: District Court Rules 2005 (WA) (DCR) r 50(1). Neither party has asked the court to exercise its discretion to admit further evidence, so the appeal is to be determined on the evidence before Magistrate Hawkins: MCCPAA s 40(4); DCR r 50(2), (3).

5 An appeal from a decision of a magistrate to the District Court is by way of rehearing: Regan v Gibson [2010] WADC 144 [7]; Butler v Bennett [2007] WADC 107 [10]. It is thus necessary for the appellant to demonstrate error in the court below: Allesch v Maunz [2000] HCA 40 [23]; [2000] HCA 40; (2000) 203 CLR 172; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 [14]; [2000] HCA 47; (2000) 203 CLR 194.

6 The decision under appeal depended upon the exercise of a judicial discretion, namely whether to set aside a judgment granted summarily pursuant to MCCPA s 18(6). The nature of the inquiry an appellate court is to undertake when reviewing a discretionary decision is conveniently summarised in the decision of Dixon, Evatt and McTiernan JJ in House v R [1936] HCA 40; (1936) 55 CLR 499 (504-505, references omitted):

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

7 In Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, Mason J and Deane J made the following comments elaborating on the principles set out in House (518-519):

Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends.

The principles enunciated in House ... were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of such an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.

8 A breach of the duty to act judicially or in accordance with the rules of procedural fairness likewise constitutes an error of law. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Deane J summarised the principle as follows (366 - 367):

A duty to act judicially (or to accord procedural fairness or natural justice) extends to the actual decision-making procedure or process, that is to say, to the manner in which and the steps by which the decision is made. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably ... When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision.

9 Thus, issues like bias (Regan [56]ff; Lydon v Lydon [2007] WADC 122 [103]ff), inadequate reasons (Hoskins v Armstrong [2008] WADC 168 [45]; Butler [44] ff)) and denial of procedural fairness (Lydon v Lydon [2008] WADC 61 [24]) are routinely considered in appeals to the District Court.

10 The present application was commenced in the Magistrates Court on 28 June 2010 by lodgement of a general procedure claim. The appellant claims the amount of $18,247.59 plus interest in recovery of a mistaken payments made by her to the respondent on 21 January 2010. The description of the claim continues that the appellant 'seeks recovery of the payment as the [appellant] thought mistakenly she was under a legal obligation to pay the statutory demand made by the [respondent] on Computer Accounting and Tax Pty Ltd (In Liquidation) of which company she is a director'.

11 In her statement of general procedure claim filed on 4 October 2010, the appellant stated that a provisional liquidator, Mervyn Kitay, was appointed to CAT by order of the Supreme Court on 21 January 2010. Paragraph 5 of the statement of general procedure claim is significant. It reads (AB 266):

5. On 22 January 2010 the [appellant] spoke to Mr Kitay, who advised her that she should pay the full amount of the statutory demand because as director she was liable for the debts of CAT. Pursuant to this advice the [appellant] paid the full amount of the statutory demand of $18,247.59 on or about 22 January 2010. On 11 June 2010 Mr Kitay confirmed his oral advice in a memorandum to the claimant.

12 In his statement of defence to general procedure claim filed 7 October 2010, the respondent admits that on 25 January 2010 his solicitor received a cheque drawn by the appellant in favour of his lawyers in the amount of $18,247.59. He sets out the legal basis of his defence as being that the payment by the appellant of the amount of $18,247.59 was deliberately made by the claimant and is not a mistaken payment pursuant.

13 By application dated 8 October 2010, the respondent applied for summary judgement pursuant to MCCPA s 18(1). The respondent filed an affidavit dated 8 October 2010 in support of the application for summary judgement. There are three significant portions of this affidavit. This first is Annexure J. This is a letter dated 21 January 2010 from the appellant and her husband to the respondent's solicitors. The letter referred to the hearing in Supreme Court action COR 2 of 2010 on 20 January 2010 (the application pursuant to which the provisional liquidator was sought). In the opening paragraph the appellant noted that it is likely that the presiding judge 'will make an order for the appointment of a provisional liquidator today'. The appellant made an offer of certain security for the statutory demand. In the third last paragraph, the appellant stated 'the full amount of Stuart Forbes statutory demand will be paid within 7 days to your office' (AB 313). The letter continued (AB 313):

Should the above not be accepted, we will file an application today in the Supreme Court for the statutory demand of the Plaintiffs to be set aside on the basis of defective service and disputed amount and request that the judge reserve his decision today pending the hearing of such an application, on the basis that both statutory demands will be secured after the hearing.

14 The second portion is Annexure K (AB 314). This is an email from a principal of the respondent's solicitors to the appellant. The email was sent at 1.06 pm. In that email, the respondent's lawyer stated: 'please note that your offer to pay the amount due to Mr Forbes under his statutory demand within seven days has been accepted by him but be aware of the fact that should you fail to pay him he can continue the winding up proceeding in his own name'.

15 The third portion is Annexure N (AB 339 ff). Annexure N is a copy of an affidavit sworn by the appellant on 3 March 2010 in Supreme Court proceedings COR 2 of 2010. At par 66 and par 67, the appellant deposed as follows (AB 352):

... When Mr Kitay was appointed provisional liquidator I spoke to him and told him that I intended to pay the Forbes Debt for CAT. Mr Kitay did not object to that payment being made....On 21 January 2010 I drew a personal cheque in the sum of $18,247.59 payable to the plaintiffs' solicitors being the amount of the Forbes Debt recorded in the statutory demand and posted it to the plaintiff's solicitors.

16 The appellant filed an affidavit dated 25 October 2010 in opposition to the summary judgment application. At par 9 of this affidavit, the appellant states (AB 361):

On 22 January 2010 Mr Kitay telephoned me demanding that I meet him within half an hour. I discussed with Mr Kitay the defendant's statutory demand and Mr Kitay advised me to pay it in full. Mr Kitay did not tell me it would be an unfair preference payment. Attached is an extract of a memorandum I received from Mr Kitay in which he confirms his opinion that my husband and I are responsible for satisfaction of the defendant's debt "AF1". I have excluded those matters which are commercially confidential and are not relevant to these proceedings.

17 Annexure AF1 appears to be a document entitled 'Proposed Agenda for Meeting on 11 June 2010'. On its face, it appears to have been prepared by Freehills. The relevant portion appears to be the following, which is under a heading 'Preference claim against Forbes' (AB 363):

If, which is not yet clear, Mr Forbes did receive a preference, the liquidator will investigate that preference. Of course, if that sum is recovered from Mr Forbes, he simply becomes another creditor of CAT and, therefore, the extent of recovery actions against Mr and Mrs Frigger will need to extend to amounts sufficient to satisfy the debt due to Mr Forbes.

18 At par 14 of the affidavit, the appellant deposes that on 21 June 2010 she sent a notice of demand to the respondent, which she attached and marked 'AF2'. This was a notice of demand in relation to what is described as the mistaken payment, and appears to have been issued as a precursor to be commencement of the present claim in the Magistrates Court. Paragraph 1 of the letter provides (AB 364):

We refer to a payment made by Angela Frigger to you on 21 January 2010 in the amount of $18,247.59 pursuant to your statutory demand made on Computer Accounting and Tax Pty Ltd.

19 The respondent's application for summary judgment was heard before Magistrate Cockram on 20 December 2010. After hearing arguments from counsel for the appellant and the respondent, his Honour delivered reasons ex tempore. His Honour followed the decision in Ravi v Armerind Pty Ltd [2006] WADC 84 (incorrectly referred to as [2006] WADC 85 in the transcript) that the principles which apply to a summary judgement in the Supreme Court also apply to an application pursuant to MCCPA s 18(1). His Honour also referred to the decision of the High Court in David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353, in particular a passage at page 379 where the members of the High Court stated that in order for there to be an actionable mistake of fact, the payment must have been caused by a mistake.

20 On the facts before him, his Honour did not accept the appellant's position that the payment was made as a result of a mistake arising from her conversation with Mr Kitay on 22 January 2010. His Honour stated that 'the matters relied on by [the appellant] to support her claim are inconsistent with contemporaneous documents' (AB 263). His Honour referred to the material from Annexures J, K and N from the respondent's affidavit in support which I have quoted above. His Honour concluded (AB 264):

In her statement of claim she says that the relevant conversation took place on 22 January 2010, and then in her affidavit in opposition to this matter, being the affidavit she swore on 20 October 2010, at paragraph 9, she again states that this relevant discussion took place with Mr Kitay on 22 January 2010. That, at the risk of repeating myself, is after the offer to pay, the acceptance to pay and the actual payment were made, because of this common ground that that was all done on 21 January 2010. I therefore accept that on her own evidence any discussion with Mr Kitay could not be causative of the payment in this matter.

21 His Honour ordered summary judgment against the appellant.

22 By application dated 24 December 2010, the appellant sought an order pursuant to MCCPA s 18(6) that the summary judgement dated 20 December 2010 be set aside and that the respondent's application for summary judgement be dismissed. The appellant filed an affidavit sworn 21 December 2010 in support of her application. It is instructive quote the substantive parts of this affidavit in their entirety (AB 120):

1. Following the delivery of summary judgment at the hearing of 20 December 2010 my solicitor Louise Horwood advised me, and I verily believe, that she had received no written submissions of the defendant's prior to the hearing and she was 'ambushed' by the oral submissions that were made.
2. I heard the oral submissions made by the defendant's counsel and say there were numerous factually incorrect statements made in those oral submissions.
3. One of the factual incorrect statements is that I posted the cheque for the subject payment to the defendant on 21 January 2010, before I had spoken to the provisional liquidator. This is incorrect. I had drawn the cheque on 21 January 2010 but I did not post it until the weekend of the 23 - 24 January 2010. The cheque has a receipt date stamp of 25 January 2010. Had I posted the cheque on 21 January 2010, the defendant's solicitor would have received it on 22 January 2010. I base this belief on my own experience that a letter I post from Applecross to Perth is always delivered the following day.
4. At no time have I stated that my mistake was based solely on the advice given to me by the provisional liquidator.
5. Prior to the provisional liquidator being appointed, the members' voluntary liquidator, Mr Glenn Trinick was in control of the company. Mr Trinick and I were working closely together because we believed the company was solvent based on the information contained in the declaration of solvency and strong opinions received from Mr McCusker AO QC, Mr Paul Mendelow and Mr Iain Freeman of Lavan Legal that the Company would obtain special leave, and then win an appeal, in the High Court. In this case the company would have been entitled to legal costs of approximately $850,000.
6. At no time have I stated that my mistake was based on "future predictions".
7. Prior to the hearing of this application, I will obtain a copy of the transcript of the hearing on 20 December 2010 and am confident that I will be able to demonstrate to this Honourable Court which statements of fact made from the bar table by the defendant's counsel are false and that my claim has merit and ought to be tried if my application for the defendant's defence is not successful.

23 The appellant filed a second affidavit, sworn 14 February 2011. In this affidavit the appellant took issue with certain of the factual findings made by Magistrate Cockram.

24 The appellant filed a third affidavit, sworn 5 April 2011, which placed before the court certain missing portions of the transcript of the hearing before Magistrate Cockram, as well as to correct certain other errors in relation to the transcript.

25 The respondent filed an affidavit in support of the application sworn 20 January 2011 setting out some factual issues in response to an assertion by the appellant that her solicitors were not served with the written submissions on his behalf prior to the hearing.

26 The respondent filed a second affidavit dated 25 February 2011 primarily dealing with related proceedings in the Supreme Court.

27 The appellant's application to set aside summary judgement came before Magistrate Hawkins on 28 January 2011, 25 March 2011 and 15 April 2011. Her Honour delivered written reasons on 23 May 2011, dismissing the application and giving liberty to apply in relation to costs.

28 Magistrate Hawkins accepted the respondent's submissions that it is not open under an application pursuant to MCCPA s 18(6) to raise complaints that are properly the subject of an appeal. The magistrate relied on the decision in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 that the 'primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute' [69]. Her Honour concluded (AB 17 - 18):

Section 40(1) of the MCCP Act grants a power to appeal a judgment of this court. An appeal only lies where an error of law exists from a decision of a Magistrate. This is a specific provision that therefore deals with complaints concerning errors made in delivering a final judgment. In light of this specific provision it is not open under an application under section 18(6) of the MCCP Act to raise complaints that are more properly the subject of an appeal under section 40(1) of the MCCP Act. In Wood v Public Trustee Owen J (1995) 14 WAR 251 cited Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 where it was stated:

Where there is a general provision which if applied in its entirety, would neutralise a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provisions; and the general provision, in so far as it is inconsistent with the special provision, must be deemed not to apply.

I therefore accept Mr Forbes's submissions that section 18(6) MCCP Act is not a provision by which the summary judgment application can simply be re-argued in circumstances where every opportunity was afforded to a party to be heard on the hearing of the original application. I also accept on such an application the applicant needs to establish such things as denial of natural justice, fraud, or the existence of fresh evidence. Mrs Frigger has not raised any claim as to the existence of fresh evidence nor does she claim a fraud exists.

29 Her Honour then proceeded to review the three submissions by the appellant that fell within scope of MCCPA s 18(6) as she construed it. Specifically, her Honour found (AB 24):

(a) the appellant was given an opportunity to be heard at the hearing of the summary judgment application;

(b) the evidence relied on by the respondent at the hearing of the summary judgment application was not the subject of the implied undertaking not to use documents or information disclosed by a party under compulsory court processes for an ulterior purpose; and

(c) comments by counsel for the respondent during argument on the hearing of the summary judgment application did not constitute false evidence.

Grounds of Appeal 1, 2 and 3 - Scope of MCCPA s 18(6)

30 The first three grounds of appeal concern the scope of MCCPA s 18(6), and are conveniently dealt with together. The grounds provided:

1. The learned magistrate erred at law by finding at [10] that her discretion for applications under s 18(6) MCCPA Act is fettered to grounds only of:

and the learned Magistrate should have found that the Court has full discretionary powers to review a summary judgement pursuant to paragraph 1920.70 Red Book Magistrates Court Civil Procedure and the Court's duty under s 13 MCCPA Act

1. The learned Magistrate erred at law by finding at [10] that section 40 (1) MCCPA Act is a specific provision only in relation to errors of law in final judgements and should have found that section is a general provision for all appeals from Magistrates decisions and the learned Magistrate further erred in law because if the summary judgment decision was a determination on a question of law only, then such a decision was not appealable pursuant to section 18(4) MCCPA Act.
2. The learned Magistrate erred in law by finding at [10] that the statutory construction of section 18 (6) MCCPA Act is such that it is deemed to be a 'general' provision that does not apply as it inconsistent with section 40(1) MCCPA Act which is a special provision and should have found the opposite.

31 The appellant observed that the Magistrate resolved a conflict between MCCPA s 18(6) and (40) by the application of the maxim of statutory construction generalia specialibus non derogant - general words do not derogate from specific. The appellant submitted that this maxim only applies where there is an irreconcilable conflict between the relevant provisions. The court must be convinced that the two provisions cannot stand together: Wood v Public Trustee (1995) 14 WAR 251, 255E. Further, in applying the maxim the court must (logically) determine which is the general and which is the specific provision.

32 In this context, counsel submitted that the Magistrate's error was twofold:

(a) she erred in implicitly characterising the provisions in question as being in irreconcilable conflict; and

(b) if they are in irreconcilable conflict, she erred in characterising MCCPA s 40(1) as the specific and s18(6) as the general provision.

33 The appellant submitted that there is no reason why a statute such as the MCCPA Act should not provide for two distinct means for review of certain decisions, and no reason why those means should not overlap to some extent. She submitted that there is nothing in the language of either provision that would 'if applied in its entirety ... neutralise' the other, citing Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 [14]. Consequently, the existence of s 40(1) gives no reason to restrict the scope of the clear words of s 18(6), and the magistrate was wrong in doing so.

34 As to the second point, the appellant submitted that if there is an irreconcilable conflict between MCCPA s 18(6) and s 40(1), the magistrate erred in characterising s 40(1) as the specific and s 18(6) as the general provisions (AB 17). MCCPA s 40(1) is not only applicable where an error of law affects the decision of a magistrate. It is a provision of general application. MCCPA s 18(6) is a specific provision, applying purely to summary judgments. If the maxim is to be applied to regulate the relationship between the two provisions, then s 18(6) should be read as the proviso on s 40(1), and not vice-versa. The learned magistrate therefore erred in restricting the operation of s 18(6).

35 The appellant submitted that the magistrate's error had (at least) one very serious consequence, namely that she held that she could not consider the appellant's submission that Magistrate Cockram had entered summary judgment in the face of a dispute of fact as to the timing of the payment to the respondent (AB 23).

36 The respondent repeated the submissions accepted by Magistrate Hawkins that the power in MCCPA s 18(6) may only be exercised where the applicant can establish grounds such as a denial of natural justice, fraud or the existence of fresh evidence. This submission commences with the proposition that a successful application for summary judgment produces a judgment after a hearing on the merits, which is a final judgment: Longdate v Danby [1982] 3 All ER 129, 137; Hunt v Knabe (No 2) (1992) 8 WAR 96, 109. At common law, once a final judgment has been passed and entered, the court thereafter lacks the power to alter or set aside the judgment: Caboolture Park Shopping Centre Pty Ltd (In Liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224, 234. In Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529, 530 per Barwick CJ stated:

Once an order disposing of a proceeding has been perfected by being drawn up as the record of the court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed.

37 Counsel submitted that the power to extend time limits in Rules of the Supreme Court 1971 (WA) (RSC) O 3 r 5(1) is an example of such a relevant statutory provision: FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268.

38 Counsel referred also to the power in RSC O 14 r 12 to set aside a summary judgment where a party fails to appear at a hearing. In order to set aside the judgment the party who did not appear must provide a satisfactory explanation for their absence from the hearing and any delay in applying to set aside the judgment. The party must also show that, had they appeared, they would have been given leave to defend: Aboyne Pty Ltd v Dixon Homes Pty Ltd [1980] Qd R 142, 143. The respondent submitted that this power did not apply in the present case as the appellant did appear, by experienced counsel, and was heard.

39 As to MCCPA s 18(6), the respondent submitted that it is not a provision by which a decision can be re-litigated over again in the hope of achieving a different outcome. If this was allowed, there would be no finality in any case before the Magistrates Court. It would effectively allow for an abuse of process by the ability of a litigant to mount a collateral attack on the validity of the first magistrate's decision.

40 The respondent submitted that an application pursuant to MCCPA s 18(6) is not a re-hearing de novo. Rather, it is an application to set aside the original decision. Accordingly, the respondent submitted that there must be some basis made out for the exercise of such a judicial discretion which impeaches the validity, or is a form of review, of the basis for the making of the original decision. However, it would be incongruous to allow effectively an 'appeal' from one magistrate to another magistrate through the procedure of s 18(6). The respondent thus concluded that MCCPA s 18(6) involves a more limited review.

41 The respondent submitted that the limited review was essentially a statutory framework within which the common law power to set aside a perfected judgment. Citing the decision of Brennan J in Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) 28 FLR 195, 198, the respondent submitted that such a judgment may only be set aside in three classes of case:

(a) those founded on the inherent jurisdiction of the Court to ensure that its procedures do not effect injustice;

(c) those where the judgment is obtained by fraud or by an agreement which is void or voidable.

Therefore section 18(6) provides a statutory basis to re-open a perfected final judgment, and on a proper construction is limited to a case where the judgment is impeachable on such grounds as fraud, fresh evidence, correction of an error on the face of the record (where the judgment or order does not actually record what the Magistrate intended) or where there has been a denial of natural justice by way of a failure to be heard or to be given an opportunity to be heard (such as where through no fault the party was not present or represented, or the party was under a disability and therefore not "effectively heard").

43 In the present case, the respondent submitted that none of these grounds were made out. The appellant was represented by counsel on 19 November 2010, and at the hearing on 20 December 2010. The appellant's counsel was heard on 20 December 2010. There was no 'fresh evidence' or relevant legal argument (to the extent that error of law is permissible) which was not or could not have been put before the court at the hearing on 20 December 2010. Nor did the appellant argue below that there existed any 'fresh evidence'.

44 In relation to ground 2, the respondent agreed that the magistrate erred in determining that 'an appeal only lies where an error of law exists from a decision of a magistrate' (AB 17). Rather, an appeal lies pursuant to MCCPA s 40(1) irrespective of whether the error is stated to be one of law, fact or mixed fact and law. Similarly an appeal lies whether the decision is interlocutory or final (without any requirement for leave). However, the error in stating the nature of the right of appeal so narrowly did not affect the magistrate's reasoning or the outcome of the application. Rather, her Honour was correct in finding that the discretion provided under MCCPA s 18(6) is not exercisable in circumstances properly the subject for an appeal, and therefore s 18(6) has a different operation than s 40(1) (AB 17 - 18).

45 The respondent submitted that grounds 2 and 3 were in effect alternate ways of raising ground 1.

46 In order to properly construe MCCPA s 18(6), it is instructive to place it in its wider context. MCCPA s 18, in its entirety provides:

(1) The Court may give judgment against a claim without a trial if the party making the claim does not satisfy the Court that the claim has a reasonable prospect of succeeding.

(2) The Court may give judgment in favour of a claim without a trial if the party defending the claim does not satisfy the Court that the defence has a reasonable prospect of succeeding.

(3) In order to determine whether a claim or a defence has a reasonable prospect of succeeding, the Court may determine any necessary question of fact or law.

(4) If under subsection (3) the Court determines one or more questions of law and there is no question of fact or mixed fact and law in issue between the parties, the determination of the question of law is final for the purposes of proceedings in the Court in relation to the case concerned.

(5) The powers in subsections (1), (2) and (3) may be exercised -

(a) in relation to all or a part of a claim or a defence; and

(b) regardless of which party, or of whether any party, has made an application to the Court for their exercise.

(6) The Court may set aside a judgment given under this section and may do so on conditions as to the payment of costs or as to other matters.

(7) No appeal lies against the Court's decision to refuse to give judgment under subsection (1) or (2).

47 There is a power to set aside a judgment given where the court strikes out a case statement, in MCCPA s 17:

(1) The Court may strike out all or a part of a case statement if -

(a) any claim in it is outside the Court's jurisdiction;

(b) it does not disclose any reasonable grounds for any claim, or for any defence, in it;

(c) its purpose is to harass or annoy, or to cause delay or detriment, or is otherwise wrongful;

(e) it is frivolous, vexatious, scandalous or improper.

(2) If the Court strikes out all of a case statement the Court may give judgment accordingly without a trial.

(3) The Court may set aside a judgment given under subsection (2) and may do so on conditions as to the payment of costs or as to other matters.

48 There is also a power in identical terms to MCCPA s 18(6) to set aside a default judgment in MCCPA s 19(3), which provides:

(1) This section does not apply to a failure to comply with the judgment of the Court in a case or any order made in or as a consequence of the judgment.

(2) If a party does not comply with this Act, rules of court, or an order or direction made by the Court, the Court may -

(a) order the party to pay the costs occasioned by the non-compliance irrespective of whether the party ultimately succeeds in the case; or

(b) give judgment against the party without a trial.

(3) The Court may set aside a judgment given under subsection (2) and may do so on conditions as to the payment of costs or as to other matters.

49 An application for an order under MCCPA s 17(3), s 18(6) or s 19(3) to set aside a judgment must be made within 21 days after the date of the judgment: Magistrates Court (Civil Proceedings) Rules 2005 (WA) (MCCPR) r 79. This requirement was satisfied in the present case, as the application was made on 21 December 2010, the day after judgment was given (AB 118).

50 It thus seems clear that Parliament intended magistrates to have a broad set of powers to revisit judgments awarded without a trial on the merits. This is consistent with the flexible approach which the court is able to adopt as regards procedure generally. Specifically, MCCPA s 14(5) and (6) provide:

(5) If the procedure to be followed in a case is not set out in rules of court, this Act or another written law, the procedure is to be that decided by the Court for the purposes of the case.

(6) The Court may decide that the procedure set out in rules of court to be followed in a case is not appropriate for the case, in which case the procedure is to be that decided by the Court.

51 The equivalent power to set aside a summary judgment in RSC O 14 r 12 and in O 16 r 4 is limited to the circumstance in which the party against whom summary judgment is given does not appear at the hearing. In MCCPA s 18(6), Parliament has enacted a wider power, not so limited.

52 The power in MCCPA s 18(6) is in substantially identical terms to the power in the RSC O 13 r 10 to set aside a default judgment. The power provides that the court 'may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order'. In Hall v Hall [2007] WASC 198 Master Newnes reviewed the authorities on RSC O 13 r 10 and observed as follows [63] - [67]:

It is apparent that what a defendant will generally be required to show by way of a defence on the merits has been expressed in a number of ways that, in their terms, are not always easy to reconcile. There are, however, two fundamental principles that I think have never been doubted. The first is that the discretion is unfettered and no hard and fast rules can be laid down as to how it is to be exercised. The second is that the discretion is to be exercised so as to do justice between the parties, having regard to the particular circumstances of the case.

It seems to me, with respect, that there is force in the suggestion of Ward LJ in Day v RAC Motoring Services Ltd [[1999] 1 All ER 1007] that the different verbal formulations in the cases are properly to be viewed as emphasis in the context of the facts of the particular case. It is obvious that the weight or emphasis to be given to the various factors that fall for consideration in the exercise of the discretion will vary from case to case, as the circumstances differ. And the circumstances may differ very widely; for example, from cases where there is a serious question as to the defendant's bona fides through to cases of a simple oversight by the defendant, or its agent, which it promptly seeks to remedy.

Given particularly the general nature of the discretion, it would, in my view, be wrong to place too much store on the precise terms in which the test has been expressed from time to time, isolated from the particular factual circumstances.

Again, with respect, it seems to me there is obvious force in the observation of Ward LJ that courts should be very wary about attempting to come to a provisional view as to the probable outcome of a defence involving issues of fact, based on the affidavit evidence available on an application of this nature, unless there is some inherent improbability in what is being asserted or some extraneous evidence which would contradict it. The evidence before the Court on such an application is necessarily limited and generally untested by cross-examination, and it is not appropriate to seek to resolve disputed questions of fact on the affidavit evidence: Lau v Citic Australia Commodity Trading Pty Ltd [[1999] VSCA 34].

I do not, however, understand the decisions of the Full Court in Rollond v Bank of Western Australia Ltd [unreported; FCt SCt of WA; Library No 980498; 3 September 1998] and Parker v Transfield Pty Ltd [[2000] WASCA 382] to require such a course to be undertaken. That is, I do not understand the statements in those cases to the defendant having a "credible defence" which would have "a real prospect of success" to be referring to a provisional view as to probable findings of fact at trial. Rather, I understand the Court to mean that it must appear from the affidavit material before the Court that the defendant's case is not inherently incredible and that if the defendant's evidence were accepted at trial the defendant would have a real prospect of success.

53 These comments are apposite to MCCPA s 18(6). In particular, in construing MCCPA s 18(6):

(a) the discretion is unfettered and no hard and fast rules can be laid down as to how it is to be exercised; and

(b) the discretion is to be exercised so as to do justice between the parties, having regard to the particular circumstances of the case.

54 I do not accept the respondent's submissions that giving MCCPA s 18(6) a wide interpretation will lead to repeated applications and abuses of process. The fact that there is a time limit of 21 days within which the application must be made will in effect mean that there will only ever be one application to set aside the summary judgment: MCCPR r 79.

55 The next issue for determination is whether the existence of a right of appeal to the District Court limits the scope of MCCPA s 18(6). The right of appeal for cases that are not minor cases extends beyond 'the judgment of the Magistrates Court in the case' to 'any order made by the Magistrates Court in the course of proceedings in the case': MCCPA s 40(1). Like an application to set aside a judgment in MCCPA s 18(6), the appeal must be commenced within 21 days after the date of the judgment (or order): MCCPA s 40(3)(a).

56 Significantly, limits are placed on the material which may go before the District Court by MCCPA s 40(4) to (6):

(4) The District Court must decide the appeal on -

(a) the material and evidence that were before the Magistrates Court; and

(b) any other evidence that it gives leave to be admitted.

(5) Leave may only be given under subsection (4)(b) in exceptional circumstances.

(6) Subsection (4) does not prevent the District Court from dealing with an appeal against a decision of the Magistrates Court to admit or refuse to admit any evidence.

57 A party against whom summary judgment has been ordered thus seems to have two choices, each of which is to be exercised within 21 days of judgment having been given. They can apply to another magistrate to set aside the judgment or they can appeal to the District Court.

58 I agree with Magistrate Hawkins that the MCCPA s 18(6) is a general provision which if applied in its entirety would neutralise the special provision in MCCPA s 40(1) dealing with appeals. I do not accept the appellant's argument that MCCPA s 18(6) is a specific provision and MCCPA s 40 the general provision. If accepted, this would mean that there is no power to appeal unless an application that could be made pursuant to s 18(6) is made. This court has already determined that there may be an appeal to this court notwithstanding that the appellant has not exercised his or her right to apply pursuant to MCCPA s 18(6): Ventureaxess Capital Pty Ltd v RM Capital Pty Ltd [2005] WADC 128 [41].

59 Like Magistrate Hawkins, I consider that the present issue of interpretation is one in which it is appropriate to apply the principle set out by the High Court Project Blue Sky that the 'primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute' [69]. In my view, the existence of a right to appeal from a decision of a magistrate to a District Court judge conveys an intention by Parliament that one magistrate ought not to effectively hear an appeal from a decision of another magistrate.

60 I have set out in par [5] to [9] above the nature of the inquiry that a District Court judge will undertake when considering an appeal. Of particular significance in the present case is that the error of law may arise from a breach of the requirement to act judicially or in accordance with the rules of procedural fairness.

(a) MCCPA s 18(6) does not give a magistrate the power to set aside a decision of another magistrate on a ground that would otherwise be a ground which could be the subject of an appeal within MCCPA s 40;

(b) consistent with the authorities in par [5] to [9] above, there is no power in MCCPA s 18(6) to set aside a summary judgment on the basis that the magistrate made an error or law or an error in the manner in which a discretion was exercised (the power to grant summary judgment being discretionary, denoted by the use of the word 'may' in s 18(1) and (2));

(c) the discretion is otherwise unfettered and no hard and fast rules can be laid down as to how it is to be exercised; and

(d) the discretion is to be exercised so as to do justice between the parties, having regard to the particular circumstances of the case.

62 The power in MCCPA s 18(6) could, for example, be exercised where the party against whom judgment is awarded was not present at the hearing of the summary judgment application. This would allow a summary judgment to be set aside in the circumstances in which RSC O 14 r 12 would apply in the Supreme Court. This overcomes the issue raised in Gibson v Perceptions (1988) 6 SR (WA) 255, 257 - 258 in which it was held that there was no power in the then Local Courts Act 1904 (WA) to set aside a summary judgment granted against a party who did not attend the hearing.

63 The interpretation I have placed on MCCPA s 18(6) would apply equally to the identical provision in MCCPA s 17(3) and s 19(3). The exercise of the discretion in each case would take its context from the circumstances giving rise to the judgment. Counsel for the appellant submitted that there are parallels between the three contexts: case management (s 17); summary judgment (s 18) and default judgment (s 19). They are each contexts in which the right of a party to a full hearing has been abbreviated for some reason. The power to set aside the judgment allows the Court the flexibility to do justice between the parties, albeit with a very limited time window of 21 days from the date of the decision.

64 I do think it is of assistance to draw an analogy to cases in which a decision is set aside for fraud.

65 The argument as to whether MCCPA s 18(6) only allows a regularly obtained summary judgment to be set aside on the grounds on which a judgment may be set aside at common law is circular. This is because both Barwick CJ in Bailey and Brennan J in Permanent Trustee recognise that a statute may authorise a perfected judgment to be set aside.

66 The respondent raised the point that a summary judgment is a final judgment, whereas a default judgment is not. To my mind this misstates the position. A default judgment is not a final judgment because it can be set aside by the court. In the Magistrates Court, a summary judgment may also be set aside by the court, meaning it is also not a final judgment in that court, at least not until the 21 day time limit to bring an application pursuant to MCCPA s 18(6) expires. It then becomes final in the sense of not being able to be set aside save perhaps for fraud.

67 Further, there is no warrant in the very general words of MCCPA s 18(6) to limit the discretion. The power in s 18(6) is certainly wide enough to allow a magistrate to set aside a summary judgment where additional evidence establishes that the decision was obtained by fraud. However, the magistrate would not need to characterise the earlier decision as having been tainted by fraud. It is sufficient that there is additional evidence for the decision to be a further and different determination, rather than a review of the first decision. This would take the application outside the ordinary scope of an appeal to the District Court. The magistrate would then exercise the discretion in MCCPA s 18(6) on the basis of the totality of the facts then before the court. The decision to set aside could then be the subject of an appeal to the District Court.

68 I would thus construe MCCPA s 18(6) in similar terms to Magistrate Hawkins. Like the magistrate, I would construe s 18(6) to exclude matters properly the subject of an appeal to the District Court. However, in my view Magistrate Hawkins erred in allowing the appellant to assert a breach of the requirement to afford procedural fairness, as this may be the subject of an appeal to the District Court.

69 It is convenient to look at grounds 6(a), (b) and (c) together. They provide:

The learned Magistrate erred in fact and law by finding that the claimant was not denied a fair hearing in the summary judgment hearing in the circumstances where Magistrate Cockram:

(a) Based on his summary judgement decision on the appellants' affidavit of 3 March 2010 filed in other proceedings which is against the rules of evidence prohibiting a former statement being tendered in evidence whose purpose for its tender is as evidence of the truth of the matters asserted in them and which could only be admitted into evidence for non-hearsay purposes.

(b) Found that the appellant made the payment before her discussion with the liquidator where there was no proof of that evidence in this case and was contrary to the appellant's own evidence in this case. A court cannot find a fact as proved on the basis of the evidence in a previous case.

(c) Found that the appellant made the payment on 21 January 2010 where there was no proof of that evidence in this case and was contrary to the appellant's own evidence in this case. A court cannot treat a fact as proved on the basis of the evidence in a previous case.

Determination based on the proper construction of s 18(6)

70 Although this ground is expressed as a denial of a fair hearing, in substance it is to the effect that Magistrate Hawkins should have reviewed the decision of Magistrate Cockram in the same manner as a District Court judge would undertake on an appeal. On this basis, Magistrate Hawkins erred in considering grounds that would ordinarily be the subject of an appeal to the District Court. The error could also be expressed on the narrower basis that it is an assertion of a denial of procedural fairness which is also a ground that would ordinarily be the subject of an appeal to the District Court.

71 On the interpretation of MCCPA s 18(6) I have adopted, it was not permissible for Magistrate Hawkins to review Magistrate Cockram's decision to determine whether the latter made an error in the admission of evidence.

72 However, as Magistrate Hawkins found that no error was made, there is no basis on this ground of appeal for setting aside the decision of her Honour.

73 In case the matter proceeds further, it is appropriate that I express a view on whether Magistrate Hawkins erred in finding that Magistrate Cockram did not err in admitting the contested affidavit evidence. I note in passing that the convoluted manner in which I have had to express the question for me to determine on this appeal fortifies my view that MCCPA s 18(6) may not be used to set aside a summary judgment application on a ground that is properly the subject of an appeal.

74 The appellant submitted that ground 6 raises an issue of whether the appellant was denied a fair hearing on 20 December 2010. In relation to this ground, Magistrate Hawkins considered a submission that Magistrate Cockram had made his decision on evidence that should not have been admitted, namely, on affidavits sworn and filed in other proceedings.

75 In her reasons, the magistrate focussed on submissions that the affidavits in question were adduced in breach of an implied undertaking arising from the use of those affidavits in earlier proceedings (AB 20 - 23). However, she also deals with an argument that evidence taken from those affidavits was inadmissible because it had been led from the bar table. The appellant thus submits that the issue of the legitimacy of the use of the affidavits in question was raised initially in general terms before Magistrate Cockram and continued as a live issue throughout the hearings before the learned Magistrate Hawkins.

76 The appellant submitted that grounds 6(a), (b), and (c) rely on the common law rule excluding the use of evidence adduced in prior proceedings unless:

(a) the parties are virtually and substantially the same;

(b) the issues in relation to which evidence is sought to be adduced are substantially the same;

(c) the party against whom the evidence is tendered had on the former occasion an opportunity of cross-examination; and

(d) the witness is incapable of being called in the second proceeding.

77 The appellant cited the decision of Wheeler J in Deputy Commissioner of Taxation (Cth) v Robinswood [2001] WASC 191; (2001) 24 WAR 284 as recent authority for these rules.

78 The appellant then submitted that the exception clearly does not apply in this case, as (without considering the other elements of the exception) the parties are not virtually or substantially the same as those to the previous proceedings.

79 The appellant went on to submit that had the magistrate not fallen into error as to the scope of her discretion under MCCPA s 18(6), she would have been alive to this issue and may well have exercised her discretion differently. Further, even if the learned magistrate was correct as to the scope of her discretion, the issue of admissibility of affidavits used in previous proceedings had been raised, and in a case where the issue was raised by a litigant in person she should have considered the general complaint of the use of inadmissible evidence more broadly than she did.

80 The respondent submitted that the particulars of the ground of appeal set out in grounds 6(a) to (c) do not relate to or support the actual error stated in the ground of appeal which recites the error as being that the appellant was denied a fair hearing on 20 December 2010.

81 The respondent further submitted that it was not open to the court to consider an argument that the affidavits were inadmissible pursuant to the principles set out in Robinswood as this was not raised in submissions before Magistrate Hawkins. In support, counsel referred to the decision in Evans v Miller [2011] WASCA 89. That case concerned an appeal from the primary judge's decision to grant a mandatory injunction requiring the appellant's to remove certain structures on their property built knowingly in breach of a restrictive covenant. In the judgment of the court, their Honours' stated [31] - [33]:

In the ninth ground of appeal, the appellants allege that the judge erred in fact and in law in ordering a mandatory injunction without regard to the fact that the 'practical effect of this order is that the [appellants] will live on a block that abuts a sheer 6 metre drop, with the only barrier between this drop and the level of the outdoor yard and main outdoor living area being a 390 millimetre fence'. By this ground, the appellants allege, in effect, that if they were to remove the contravening structures from their southern boundary, which abuts a retaining wall which drops 6 m to the southern ground level beyond the retaining wall, there would be a risk in that the drop would only then be protected by a 390 mm fence. It is alleged that had the judge given proper recognition to the risk, he would not have granted the mandatory injunction.

This ground is also without merit.

First and foremost, the appellants have not shown that this was a matter which was drawn to the judge's attention. To the contrary, the appellants conceded that this was not a matter actively pursued at trial (ts 29, 24 March 2011). Adopting and adapting the words of the plurality in Macedonian Orthodox Church v Petar [[2008] HCA 42; [2008] HCA 42; (2008) 237 CLR 66] [158], if the appellants did not see the matter 'as sufficiently material to merit proper exposition and development, why should [the judge]?'

82 The respondent then submitted that, in any event, the present affidavits were not within the rules set out in Robinswood. This is because the principles only apply where the evidence that is sought to be adduced is evidence of a witness who will not be called at trial. In the present case, the deponent of the affidavit is a party, namely, the appellant.

83 The present case is different from that in Evans. There, the ground not before the judge at first instance was a distinct factual argument. In the present case, the issue of whether the affidavits were admissible was squarely before Magistrate Hawkins. The issue was that the appellant, representing herself, did not refer to the principle in Robinswood. The error made remains the same whether the principle relied on is that from Robinswood or a breach of the implied undertaking. The error is the failure to find that Magistrate Cockram relied on affidavit material that was inadmissible in law.

84 The common law rule governing the admission of evidence given in prior proceedings is set out in Cross on Evidence (J D Heydon, 7th Australian ed, Butterworths, Australia, 2004) in the following terms ([33795]):

Evidence given in previous proceedings between the same parties or their privies may be read or recited at a subsequent trial provided the issues are the same, the witness who gave the evidence is incapable of being called (eg through death or illness) and the party against whom, or whose privy, the evidence is tendered had an opportunity of cross-examining the witness when it was given.

85 This rule was accepted and discussed by Wheeler J in Robinswood, at 288 - 292. In that case the plaintiff sought to tender testimony and exhibits from a large number of witness statements from a related criminal proceeding to the civil proceedings. Her Honour made case management orders allowing for the material to be tendered.

86 The relevant portion of her Honour's analysis may be summarised as follows [19] - [27]:

(a) evidence will be inadmissible where it was given in a suit which was between strangers to the second action;

(b) it will be admissible where it can be said that the parties are virtually and substantially the same, citing Wright v Doe d. Tatham [1834] 1 AD & E 4, 1108;

(c) the question of whether the party against whom the evidence is tendered had on the former occasion an opportunity of cross-examination is a requirement of central importance, both at common law and under the various rules which allow courts to make particular directions in relation to evidence, citing Meek v Guardian Assurance Co Ltd (1964) 80 WN 940, Tremelbye (Selangor) Rubber Co Ltd v Stekel [1971] 1 WLR 226, Pearce v Button [1986] FCA 51; (1986) 8 FCR 408; and

(d) it is necessary that it be demonstrated that a witness is 'incapable' of being called in the second proceeding before the witness's evidence at the prior proceeding will be admissible.

87 In that case, there was no evidence that the witnesses were incapable of being called. Rather, the application was based upon the proposition that it would be an unnecessary expense and a waste of the time of both the parties and the court if they were to be called. The case management orders made by her Honour were designed to achieve the same effect as the orders originally sought, and did not constitute a rejection of the principle in par 86(d) above.

88 However, the principles in Robinswood does not apply in the present case. That rule is not a substantive rule governing when a court may rely on evidence given in previous proceedings. Rather, it is one means by which evidence given in previous proceedings may be used in subsequent proceedings. It is not the only means.

89 In order to determine whether the material was admissible, it is necessary to go back to first principles. The affidavits from the prior proceedings were not tendered in their own right. They were annexed to an affidavit of the respondent. They were thus hearsay evidence tendered through the respondent.

90 Conceptually, the contested material in the affidavits was of the same evidential quality as, say, the letter from the appellant to the respondent dated 21 June 2010 (AB 364). The relevant material constituted an informal admission against the interest of the appellant, and an exception to the hearsay rule (see generally, Cross on Evidence, par 33425). The material could be relied on by the court as evidence of the truth of its contents.

91 It was open to the appellant to submit, as she did to Magistrate Hawkins, that the material in the affidavit ought to be excluded on the basis of the implied undertaking as to the use of documents disclosed in other litigation. This rule operates to exclude evidence that is otherwise admissible. However, the finding by Magistrate Hawkins that the use of the affidavits, and certain other material, did not breach the undertaking was not a ground of appeal pressed before me.

92 If I had interpreted MCCPA s 18(6) to allow a magistrate to consider whether the magistrate in the summary judgment application erred in law, either by wrongly admitting evidence or breaching the rules of procedural fairness, I would have determined that Magistrate Hawkins did not err in finding that Magistrate Cockram did not rely on inadmissible affidavit evidence.

The learned Magistrate erred in fact and law by finding that the claimant was not denied a fair hearing in the summary judgement hearing in the circumstances where Magistrate Cockram:

...

(d) Found that the appellant had a history of making payments on behalf of CAT without giving the appellant an opportunity to explain the circumstances of that history and is contrary to the 'similar fact evidence' rule which prohibits such evidence in civil cases where it is oppressive or unfair and the appellant had no notice of it and was unable to deal with it.

(e) Formed his own views as to the fact without informing the appellant and without affording the appellant an opportunity to refute or explain the resulting observations which view was fatal to the appellant's claim.

(f) Gave summary judgment in circumstances where he formed the view that statements in affidavits sworn in different proceedings and for different purposes were inconsistent but without affording the appellant cross examination.

Determination based on the proper construction of s 18(6)

93 Grounds 6(d), (e) and (f) squarely raise a denial of procedural fairness. They are issues which a District Court Judge would ordinarily review on an appeal. On this basis, Magistrate Hawkins erred in considering these grounds. Again, in case the matter proceeds further, it is appropriate that I express a view on whether Magistrate Hawkins erred in finding that Magistrate Cockram did not deny the appellant procedural fairness in the manner asserted.

94 The appellant dealt with these grounds together under the broad heading of denial of natural justice.

95 Ground 6(d) raises an issue under the general complaint of 'ambush'. The learned magistrate dealt with that complaint generally, and dismissed it (AB 18 - 20). The appellant submits that the learned magistrate was wrong in doing so as regards evidence of a course of conduct by which she and her husband are said to have paid the liabilities of CAT from their own funds. That issue was not mentioned in the respondent's outline of submissions dated 11 November 2010 (AB 369 ff.). If it was raised at all prior to the hearing, it was raised by the inclusion of the affidavit of the appellant sworn 3 March 2010 as annexure N to the affidavit of the respondent sworn 8 October 2010 (AB 339 ff). The appellant submits that this is insufficient notice as the affidavit covers many matters, only some of which were relevant to the respondent's summary judgement application.

96 The same submission is made as to the respondent's submissions before Magistrate Cockram characterising the appellant's beliefs as predictions rather than mistakes. The learned magistrate should have found that in those respects at least the appellant and her counsel were taken by surprise, and that as the Magistrate Cockram relied on these matters in ordering summary judgment, there was a failure of natural justice.

97 Grounds 6(e) and (f) relate to complaints that Magistrate Cockram did not give the appellant and her counsel a sufficient opportunity to address matters which were raised for the first time in the course of the hearing. The issue in question was the characterisation of the appellant's beliefs as to various matters as predictions, rather than mistakes.

98 Counsel referred to the decision of Brennan, Deane, and Gaudron JJ Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 571:

In the course of an eloquent passage in his judgment in Reg v Watson; Ex parte Armstrong [(1976) 136 CLR 248 at 294], Jacobs J expressed the view that judicial "silence" is a "counsel of perfection." We respectfully disagree with the application of that observation to a trial judge sitting without a jury. It seems to us that a trial judge who made the necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated.

99 The appellant submitted that the magistrate, although still to make her findings on the scope of MCCPA s 18(6), failed to consider the complaint as going to issues of natural justice and therefore even if the appellant fails on grounds 1 to 3, wrongly exercised her discretion.

100 In relation to ground 6(d), the respondent submitted that no application was brought by the appellant to cross examine the deponents of affidavits relied upon for the hearing on 20 December 2010.

101 In any event, the respondent submitted that the history of payments by the appellant are raised in the following documents:

(a) affidavit of appellant sworn 14 February 2011, par 4 (AB 122);

(b) affidavit of the respondent sworn 8 October 2010 Annexure N, being the appellant's affidavit sworn 3 March 2010, par 19 (AB343), par 24 (AB 344), par 25.3 and 28 (AB 345), par 34 (AB 346), par 102 (AB 357), par 104 (AB 358), par 107 (AB 359); and

(c) affidavit of the appellant sworn 25 October 2010, par 11 (AB 361).

102 Accordingly, as the issue had been raised, and the appellant had the opportunity to either file further affidavit material or make submissions upon such issue, the respondent submitted that the appellant was not denied a fair hearing.

103 In relation to ground 6(e), the respondent observes that the ground does not set out what finding of fact the learned magistrate made on 20 December 2010 in respect of which the appellant was not afforded an opportunity to be heard. Further the appellant does not identify where in the submissions to Magistrate Hawkins such items (on which there was an alleged failure to afford the appellant an opportunity to be heard) were set out, such that there becomes an error in the decision of the magistrate for the purposes of this appeal.

104 In relation to ground 6(f), the respondent submitted that this appears to also raise an issue as to the denial of an opportunity to be heard but because the court did not allow the appellant to cross examine the deponents of affidavits relied upon for the hearing on 20 December 2010. The respondent submitted that no such application was brought by the appellant nor foreshadowed, and such a step would not usually be permitted. There was thus no error in the court not suggesting to the appellant's counsel that such an application ought to be considered let alone actually brought or granted.

105 In relation to the issue in ground 6(d), dealing with payments, I am not persuaded that Magistrate Hawkins erred in law. I agree the following findings which she made (AB 18):

I do not accept that Mrs Frigger was denied a fair hearing. Mrs Frigger was given the opportunity to be heard on the summary judgment application on 20 December 2010. She was represented by counsel. She was also present at the hearing. Further she had sufficient time to lodge any affidavit material and submissions upon which she intended to rely. The application was originally listed for 29 October 2010 which gave her sufficient time before the hearing of the summary judgment application on 20 December 2010 to lodge all relevant material.

Despite this, Mrs Frigger says that she was taken by surprise at the hearing on 20 December 2010 as the oral submissions made by defendant's counsel raised matters different to those set out in the material relied upon by Mr Forbes. Even if this was the case, Mrs Frigger's counsel raised no objection nor sought an adjournment. In any event the key issues relied upon Mr Forbes during oral submissions at the hearing of the summary judgment application were well set out in the affidavit and written submissions lodged by both parties. The key issues in the determination of the application for summary judgment were the timing of the payment to Mr Forbes, the voluntariness of that payment and solvency of CAT.

106 In my view, it would only be in a most unusual circumstance in which a party could successfully assert that they were ambushed by material in an affidavit filed well prior to a contested oral hearing. The present case is not one.

107 In relation to the issue in ground 6(e), again it would only be in most unusual circumstance in which a judicial officer could be said not to have afforded procedural fairness because he or she 'formed his own views as to the fact without informing the appellant and without affording the appellant an opportunity to refute or explain the resulting observations which view was fatal to the appellant's claim'. The transcript of the hearing on 20 December 2009 reveals an entirely appropriate pattern of interaction between the bench and counsel.

108 There is an obligation on a judicial officer to provide adequate reasons, summarised by the Court in Mt Lawley Pty Ltd v WAPC [2004] WASCA 149; (2004) 29 WAR 273 [27] - [28] (footnotes omitted):

Where there is a right of appeal, the reasons must be sufficient to give effect to that right. The basis for the decision must be apparent, as otherwise the losing party cannot know whether there has been a mistake of law or of fact. Just what that will involve depends upon the nature of the case. Some cases turn upon a simple contest of credibility between two witnesses. Others involve detailed and complex factual and legal issues requiring close reasoning and analysis.

Reasons need not be lengthy and elaborate ... nor do they need to refer to all the evidence led in the proceeding... . However, relevant evidence should be referred to (albeit not necessarily in detail) and, where there is conflicting evidence of significance to the outcome, both sets of evidence should be referred to. Where one set of significant evidence is preferred over another, the trial judge should set out findings sufficient to explain why...

109 If the appellant was not satisfied with the reasons provided by Magistrate Cockram, it was open to her to have appealed on that basis. That would have been the context in which to raise a concern that the findings made by the Magistrate were not open on the evidence before him.

110 I note that counsel for the appellant gave only brief submissions, lasting perhaps a couple of minutes (AB 259 - 260, 155 - 156). This may well be the genesis of the appellant's concerns. Had her counsel taken his Honour through the evidence in more detail, it may have been that this would have provoked some particular questions from the bench.

112 In part, ground 6(f) repeats the issues in relation to the admissibility of the affidavits from prior proceedings, which I have already dealt with. From a procedural fairness viewpoint, the issue is not so much whether the appellant ought to have been cross examined. It is whether the appellant had an opportunity to put on evidence in response. The affidavit containing the evidence from the prior proceedings was filed on 8 October 2010 (AB 276). The appellant filed an affidavit addressing the issues raised in the 8 October affidavit on 25 October 2010 (AB 360). She thus had the opportunity to place before the court any evidence she thought relevant in response to the evidence sought to be used from the prior proceedings. There was no denial of procedural fairness.

114 Ground 8 essentially asserted a denial of procedural fairness. It provided:

The learned Magistrate erred at law and fact by finding that the appellant was given an opportunity to be heard on 20 December 2010 in circumstances where Magistrate Cockram to "stop making noises" [T9] when:

(a) The appellant had been given no notice of the false evidence and submissions form the bar table

(b) The appellant was trying to instruct her solicitor as to the falseness of the evidence and

(c) Where the quantity of false evidence made it impossible to give written instructions to counsel

115 The relevant portion of the transcript is (AB 251):

[Submissions by counsel for the respondent]...There is an unequivocal acceptance of the offer to pay the amount due to Mr Forbes, which is contained in that email. The parties ad idem at that point that there had been a proposal to compromise any further proceedings on the statutory demand and to make payment. It is at a time of day prior to the appointment of Mr Kitay as their provisional liquidator.

HIS HONOUR: Sorry. Mrs Frigger, is that you making noises?

FRIGGER, MS: I'm sorry, your Honour.

HIS HONOUR: Is it you making noises?

FRIGGER, MS: It is, yes.

HIS HONOUR: Then stop. Simply stop.

FRIGGER, MS: Sorry about that.

HIS HONOUR: Thank you. Yes, carry on.

ASHDOWN, MR: Thank you, your Honour. So we say the relevance of those communications, your Honour, is that it predates any appointment of Mr Kitay and is prior to what is set out in paragraph 5 of the statement of claim and therefore there can be no mistake going to the operative statement that Mr Forbes' debt will be paid. It is out of that obligation, and that agreement, that we say that the personal cheque was then issued.

Determination based on the proper construction of s 18(6)

116 Ground 8 again squarely raises a denial of procedural fairness. As this is a ground that would ordinarily be the subject of an appeal to the District Court, Magistrate Hawkins erred in considering it. Again, in case the matter proceeds further, it is appropriate that I express a view on whether Magistrate Hawkins erred in finding that Magistrate Cockram did not deny the appellant procedural fairness in the manner asserted.

117 Under this ground, the appellant asserts that the learned magistrate should have found that Magistrate Cockram's words to her on 20 December 2010 quoted above denied her procedural fairness. The denial was that she was prevented from instructing her counsel on allegations of fact being made in the course of counsel for the respondent's submissions. The appellant submits that in view of the nature of the submissions being put against her, she should have been afforded the opportunity to confer with and instruct her counsel. In preventing that from happening, Magistrate Cockram denied her procedural fairness.

118 The respondent submitted that, from the transcript, all that Magistrate Cockram did was to instruct the appellant to stop making noises which were audibly distracting to the court. In the transcript, the appellant does not state at that time that she was instructing counsel on some point. Rather the appellant apologises for disrupting the court.

119 The interruption occurred during the course of oral submissions on behalf of the respondent. The appellant was represented by experienced counsel who addressed the court on 20 December 2010 to the full extent that counsel desired, and provided written submissions to the court (AB 375). Counsel for the appellant did not seek an adjournment or any time to take instructions nor to clarify any matter raised.

120 The respondent concluded that the appellant's complaint, if any, was that her counsel 'kind of brushed me off' (AB 39).

121 I agree with the submissions made by the respondent. All that the transcript reveals is that Magistrate Cockram moved to deal with a distraction to the hearing before him caused by the appellant. There was no denial of procedural fairness. More specifically, Magistrate Hawkins did nor err in finding that Magistrate Cockram did not err by denying the appellant procedural fairness.

122 For the reasons set out above, I am of the view that Magistrate Hawkins erred in considering matters going to the decision of Magistrate Cockram that would ordinarily be the subject of an appeal to the District Court.

123 This raises the issue of whether the decision under appeal ought to be set aside and, if so, whether I should determine the application or remit it back to the Magistrates Court.

124 The consequence of the error in interpreting MCCPA s 18(6) is twofold. First, Magistrate Hawkins considered issues that ought not to be considered as they are properly the subject of an appeal to this court. The second is that her Honour did not consider other issues. In particular, her Honour did not consider the additional evidence filed by the appellant going to the merits of dispute (as opposed to procedural fairness or substantive error issues). In particular, in her affidavit dated 21 December 2010 the appellant goes into the detail of when she actually posted the cheque to the respondent's lawyers (see par 22 above).

125 The oral and written submissions of the parties dealt with the scenario in which I set aside the decision of Magistrate Hawkins and reconsidered the application. I have all the necessary materials before me to undertake this exercise. Given these points, and the limited amount in issue, it is appropriate that I do so.

126 In doing so, it is appropriate that I first look at the context of the law relating to recovery of mistaken payments. I then need to look at the context of a defendant's summary judgment application in the Magistrates Court. Having done so, I then need to consider the scope of MCCPA s 18(6), and, finally, make a determination.

127 The cause of action in restitution to recover money paid under a mistake is well established in Australian law. The category of mistake which may found the cause of action relevantly includes 'a belief as to the existence or a non existence of a state of affairs, factual or legal, which turns out to be mistaken': Mason & Carter's Restitution Law in Australia (K Mason, J W Carter, G J Tolhurst, 2nd ed, 2008, Lexis Nexus Butterworths Australia) 143 referring to South Australian Cold Stores Ltd v Electricity Trust of South Australia [1957] HCA 69; (1957) 98 CLR 65, 74. In David Securities, 376, the High Court confirmed that the distinction between a mistake of fact and a mistake of law does not form part of Australian law. This was already the position in Western Australia pursuant to Property Law Act 1969 (WA) (PLA) s 124. The decision in David Securities is authority for the following propositions relevant to the present appeal (376 - 379):

(a) there is a prima facie entitlement to recover moneys paid when a mistake of fact or law has caused the payment;

(b) the prima facie entitlement will arise if it appears that the moneys paid by the payer in the mistaken belief that he or she was under a legal obligation to pay the moneys or that the payee was legally entitled to payment of the moneys; and

(c) before the prima facie liability is displaced, the payee must point to circumstances which the law recognises would make an order for restitution unjust.

128 In relation to the issue of causation, the Court (Mason CJ, Deane, Toohey, Gaurdon and McHugh JJ) stated (at 376, footnotes omitted):

For the reasons stated above, the rule precluding recovery of moneys paid under a mistake of law should be held not to form part of the law in Australia. In referring to moneys paid under a mistake of law, we intend to refer to circumstances where the plaintiff pays moneys to a recipient who is not legally entitled to receive them. It would not, for example, extend to a case where the moneys were paid under a mistaken belief that they were legally due and owing under a particular clause of a particular contract when in fact they were legally due and owing to the recipient under another clause or contract ...

129 Their Honours also stated (379, footnotes omitted):

The respondent's submission that the appellants must independently prove "unjustness" over and above the mistake cannot therefore be sustained. The fact that the payment has been caused by a mistake is sufficient to give rise to a prima facie obligation on the part of the respondent to make restitution. Before that prima facie liability is displaced, the respondent must point to circumstances which the law recognizes would make an order for restitution unjust.... There can be no restitution in such circumstances because the law will not provide for recovery except when the enrichment is unjust. It follows that the recipient of a payment, which is sought to be recovered on the ground of unjust enrichment, is entitled to raise by way of answer any matter or circumstance which shows that his or her receipt (or retention) of the payment is not unjust.

130 On the issue of causation, in Deutsche Morgan Grenfell Group v Inland Revenue Commissioners [2006] EWCA Civ 118; [2007] 1 AC 558 [59], Lord Hope stated:

The essence of the principle is that it is unjust for a person to retain a benefit which he has received at the expense of another which that person did not intend him to receive because it was paid under a mistake that it was due. The claimant must prove that he acted under a mistake. But the stage when he made his mistake does not matter, so long as it can be said that if he had known of the true state of the facts or of the law at the time of the payment he would not have made it. A wrong turning half way along the journey is just as capable of being treated as a relevant mistake as one that is made on the doorstep at the point of arrival.

Relevant law - defendant's summary judgment application

131 The discretion in the Magistrates Court to order summary judgment in favour of a defendant arises where 'the party making the claim does not satisfy the court that the claim has a reasonable prospect of succeeding': MCCP s 18(1). In Ravi Judge Sleight held that the wording of MCCPA s 18(2) (being a plaintiff's summary judgment application) did not displace the overriding burden on the applicant for summary judgment, the respondent having an evidential burden. By parity of reasoning, I would come to the same conclusion for MCCPA s 18(1) (a defendant's summary judgment application). The principles used to determine a defendant's summary judgment application pursuant to RSC O 16 are thus apposite to the present application. In that context, the burden of persuasion is on the applicant: Morgan v Pallister [2004] WASC 188 [4].

132 On an application pursuant to RCS O 16, the 'applicant for summary judgment bears a heavy onus': WMC Resources Ltd v Roche Mining Pty Ltd [2004] WASC 76 [35]

133 In SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138 [20], the Court of Appeal (Pullin, Newnes and Murphy JJA) in a joint judgment approved the following formulation of the general principles for an application pursuant to RSC O 16:

The power to order summary judgment is one that should be exercised with great care: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]. And whilst the court may determine any difficult question of law on such an application, it will usually be appropriate to leave the determination of such questions for trial: see Theseus Exploration NL v Foyster [1972] HCA 41; (1972) 126 CLR 507, 514 - 515; Casella v Hewitt [2008] WASCA 13; (2008) 36 WAR 1 [36].

134 Where there are disputed facts, and in the absence of cross examination, the application is to be determined on the basis that the respondent's version of the facts, assuming that it is not inherently incredible, would ultimately be accepted at the trial of the action: Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, 608. In the same case, members of the High Court had previously commented that: 'The issue before the learned Master on the application for summary judgment was whether the material before the Master demonstrated that the action should not be permitted to go to trial in the ordinary way because it was apparent that it must fail (602)'.

135 In Mazzuchelli v Mazzuchelli [2007] WASC 21 (a defendant's summary judgment application), Hasluck J summarised the principles to be applied where there are contested facts as follows [23]:

Put shortly, then, the power to order summary judgment should be reserved for a case which is so obviously untenable that it cannot possibly succeed. In this kind of application the version of facts put forward by a plaintiff, if not inherently incredible, should be accepted for the purposes of this application as if they were the facts that would be ultimately accepted at the trial. However, this does not mean that the Court will accept every statement made in an affidavit, however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same document, or inherently incredible: Eng Mee Yong v Letchumanan [1980] AC 331 at 341 per Lord Diplock.

136 Beech J made comments to similar effect in Ayres v Hughes [2008] WASC 306 [8].

137 If, after argument, there remains real uncertainties to the applicant's right to judgment without further investigation of the facts, summary judgment must be refused: Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184 [28]; The Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VicLawRp 47; [1947] VLR 332, 335.

Scope of MMCPA s 18(6)

138 As I have observed above, the principles set out in Hall v Hall [2007] WASC 198 relating to RSC O 13 r 10 are apposite to MCCPA s 18(6), namely:

(a) the discretion is unfettered and no hard and fast rules can be laid down as to how it is to be exercised; and

(b) the discretion is to be exercised so as to do justice between the parties, having regard to the particular circumstances of the case.

139 There is no provision in MCCPA s 18 equivalent to, say, MCCPA s 40(4) and (5), imposing a bar on the introduction of additional evidence on an application pursuant to MCCPA s 18(6), nor any requirement to obtain leave to do so. This applies regardless of whether the evidence is further evidence (in existence at the time of the application for summary judgment) or fresh evidence (not in existence, or not known about, at the time of the application for summary judgment).

140 In the present case, this means that I am to determine the application based on the totality of the evidence before Magistrate Hawkins, subject only to the requirement that I not consider grounds that would ordinarily be the subject of an appeal.

141 The application of the discretion in the present case is analogous to a second application to set aside a default judgment. This issue was considered in Racovalis v Rescom Mortgages Pty Ltd [2010] VSCA 55. In that case, the applicant obtained default judgment against the first respondent in an action in the County Court. The respondent applied in the County Court for an order setting aside the default judgment. It did so on the basis of affidavit evidence that the first respondent was not the correct defendant in the action, and that a director of the first respondent had passed the writ on to the correct defendant, an entity by the name of Rescom Commercial Finance Pty Ltd, to be dealt with. The judge hearing the first application, Davis J, dismissed the application, not being satisfied that there was an arguable defence. A few days later a second application was filed, which was ultimately granted by Ginnane J. The applicants sought leave to appeal, which was declined by the Court of Appeal (Harper and Emerton JJA).

142 The approach adopted by Ginnane J was to consider whether the second application was an abuse of process by asking whether it was in the interests of justice to permit the first respondent to make a second application. The following factors were identified by the Court at first instance and on appeal as being relevant [30]:

Considerations relevant to whether a second application to set aside a default judgment is an abuse of process will vary from case to case. They will usually include the effect on a party who, having been successful in opposing an application, is faced with a second application; the effect of any delay in making a second application; whether there was an explanation for the new material not being provided to the Court on the earlier application; the nature of that material; and whether a fair trial can be held. The evils of permitting a second application include the risk of conflicting decisions; the unnecessary vexing of respondents; judge shopping; the diminution of certainty in the conduct by litigants of their affairs; and adverse consequences to the administration of justice.

Judge Ginnane observed that he was not asked, in effect, to sit in review of the first application to Judge Davis and that he would not have had the power to do so in any event. The substance of the first respondent's argument before him was largely based on new affidavits, although some reliance was still placed on aspects of the earlier affidavits. He held that there was no great risk of conflicting decisions and that there was no suggestion of judge shopping.

144 The observations of Ginnane J and the Court of Appeal provide a convenient framework for analysis for an application pursuant to MCCPA s 18(6).

145 On my review of the evidence, the key item of new evidence is that in the appellant's affidavit dated 21 December 2010 that she did not post the cheque until the weekend of 23 - 24 January 2010. Significantly, her evidence is that the cheque was not posted until after her conversation with Mr Kitay on 22 January 2010 (AB 120, see par 22 above).

146 Using the general discretionary considerations identified in Racovalis, the new materials were provided immediately after the initial application was determined. There was no need for an explanation of delay. There is no express explanation for the new material not being provided to the court on the earlier application. From the appellant's affidavit dated 21 December 2011, it appears that the appellant and her counsel were 'ambushed' by oral submissions, and did not appreciate the significance of the date on which the cheque was posted (AB 120, see par 22 above). The nature of new evidence is thus evidence elaborating on the evidence before the court on the initial application, going into more detail on an issue that assumed particular significance as the oral argument progressed.

147 On the interpretation of MCCPA s 18(6) I have adopted, there is no risk of conflicting decisions. If the new material is of such significance that the order for summary judgment ought to be set aside, it will, axiomatically, be on the basis that the new and different factual matrix warrants a different conclusion. The 21 day time limit in MCCPR r 79 practically means that there can only be one application pursuant to MCCPA s 18(6). This means that the opportunity to 'unnecessarily vex' respondents or judge shop is limited. For the same reason, there is only a limited diminution of certainty in the conduct by litigants of their affairs.

148 This leaves the 'adverse consequences to the administration of justice' as a factor. In my view, this is dealt with in the overall discretionary framework I have adopted, namely that the discretion is to be exercised so as to do justice between the parties, having regard to the particular circumstances of the case. If the application is granted under this framework, the administration of justice will be maintained by the finding that it was necessary to do so in order to do justice between the parties in the particular circumstances of this case.

149 Consistent with the authorities on defendant's summary judgment applications, I accept for present purposes the appellant's evidence that she did not post the cheque until the weekend of 23 - 24 January 2010. I also accept, for present purposes, that the appellant had the conversation with Mr Kitay described in par 9 of her affidavit dated 25 October 2010 in opposition to the summary judgment application (AB 361, quoted above par 16).

150 It is clear that the respondent had a legal entitlement to the $18,247.59 from CAT. The alleged mistake of law was that the appellant had a legal obligation, as a director of CAT, to pay this debt in the face of a statutory demand on CAT.

151 In my view, the key issue is to identify the operative cause of the decision by the appellant to pay the respondent the $18,247.59. It is plain from the letter dated 21 January 2010 from the appellant and her husband to the respondent's solicitors that the reason for the offer to pay the money was because of the statutory demand lodged against CAT. The letter contained a threat to request the judge hearing the application to appoint a provisional liquidator to reserve his decision pending an application to set aside the statutory demand (AB 313 quoted at par 13 above). It is apparent from the face of the decision to appoint a provisional liquidator that it was handed down on 21 January 2010 (AB 315). There is no evidence before me that there was an unsuccessful application to adjourn the hearing. The offer in the letter was accepted by the solicitor for the respondent, on the evidence as I understand it, prior to the hearing on the afternoon of 21 January 2010 (AB 314, see par 14 above). I am satisfied that the operative cause of the payment was as part of an agreement to remove the respondent's statutory demand from the liquidation process.

152 No doubt there were a whole myriad of reasons why the appellant chose to enter into an arrangement to personally pay the debt due by CAT to the respondent so as to remove his statutory demand from the liquidation process. One of these appears to have been the risk that she and her husband would be personally liable for the amount of this debt. Even if Mr Kitay told the appellant she had to pay the amount of the statutory demand, absent a court determination, the highest that any 'mistake' could be put is that there was a risk that the appellant and her husband would have to pay this debt. Indeed, this is the point being made by Mr Kitay in the memorandum prepared by him (or Freehills on his behalf) in June 2010 which the appellant says confirms Mr Kitay's advice to her (AB 363, par 17 above). There is no evidence before me that the liquidation of CAT has been completed, or that there has been some compromise of the debts of CAT with the appellant and her husband. There is thus still a risk that, even if the amount was refunded to the respondent, the appellant and her husband would have to pay this debt (for example, as a debt incurred when the CAT was trading whilst insolvent).

153 The basis on which recovery is sought is, in essence, that as the liquidation developed, it became apparent to the appellant that her risk of being personally liable for the amount owed by CAT to the respondent was significantly less than she thought at the time at which the payment was made. There was no mistake as to the existence or non-existence of a state of affairs. The risk that, as a director of CAT, she could be personally liable for the debts of CAT, was present at the time the payment was made. From Mr Kitay's June 2010 memo, it was equally present at the time repayment was demanded from the respondent in June 2010 (see AB 364). As her counsel submitted to Magistrate Cockram, the error made was in her 'state of mind' (AB 155). This is not sufficient. To allow recovery of money under a mistake in those circumstances would open up a floodgate of claims, well beyond the class of cases in which recovery has been allowed in the past for a mistaken payment (whether of fact or law). It would allow a party to claim a mistake of fact or law simply by changing their mind.

154 There is another way of looking at the facts which reinforces this finding. Assume I am wrong in finding that what Mr Kitay told the appellant did not just go to her state of mind, but was a 'state of affairs'. The appellant's evidence is that what Mr Kitay told her on 22 January 2010 was confirmed in his memo of June 2010 (AB 316, par 16 above). Assume also that:

(a) I am wrong in interpreting Mr Kitay's memo as stating that there is a risk that the appellant and her husband could be made to pay the money due by CAT to the respondent; and

(b) the memo confirms the appellant's evidence that Mr Kitay told her that she had to pay the debt due by CAT to the respondent (AB 361, par 16 above).

155 The confirmation by Mr Kitay was in June 2010 (AB 363, see par 17 above). The appellant's letter of demand to the respondent claiming mistake was also sent in June 2010 (AB 364). It is thus readily apparent, on these assumptions, that Mr Kitay both held, and communicated to the appellant, the same 'state of affairs' in January 2010 when the payment was made and June 2010 when the mistake was claimed. If Mr Kitay's statement to the appellant was a 'state of affairs', then it did not change between when the payment was made and the mistake was claimed. This means that there could be no mistake as to this state of affairs which caused the payment and which, once appreciated as a mistake, caused the demand for repayment.

156 For these reasons, I am not satisfied that, in order to do justice between the parties in the particular circumstances of this case, I should set aside the decision of Magistrate Cockram on 20 December 2010 granting summary judgment to the respondent. I decline to do so.

157 The appeal should be dismissed. I will hear from the parties as to costs.