Citation : MANONAI -v- BURNS [2010] WADC 157

Appeal - Whether magistrate's reasons adequate - Conflicting evidence of significance - Necessary to consider whether evidence of one party preferred over the other in reasons - Whether inadequacy of reasons gives rise to a miscarriage of justice - Turns on own facts

Appeal - Refusal to grant adjournment - Whether injustice has resulted - Whether denial of procedural fairness

Magistrates Court Act 2004 (WA), s 3, s 31

Magistrates Court (Civil Proceedings) Act 2004 (WA), s 42

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

Bennett v Carruthers [2010] WASCA 131

Betts v Hardcastle [2001] WASCA 35; (2001) 23 WAR 559

Bloch v Bloch [1981] HCA 56; (1981) 180 CLR 390

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226

Lloyd v Faraone [1989] WAR 154

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597

Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273

Pettitt v Dunkley [1971] 1 NSWLR 376

Riley v State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525

SNF (Australia) Pty Limited v Jones [2008] WASCA 121

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Stojkovski v Fitzgerald [1989] WAR 328

Touma v Saparas [2000] NSWCA 11

3 HALL J: In 2009 the appellant, Kalaya Manonai, commenced proceedings in the Magistrates Court against the respondent, Khamtiang Burns. Ms Manonai claimed that Ms Burns owed her $35,036 pursuant to an oral contract. After a hearing in early 2010 a magistrate dismissed Ms Manonai's claim but allowed a counterclaim. Ms Manonai appealed that decision to the District Court. On 15 October 2010 a District Court judge dismissed that appeal. Pursuant to s 42 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) Ms Manonai now appeals from that decision to this court.

4 Ms Manonai claimed that she was owed monies pursuant to a verbal agreement between herself and Ms Burns made in or about November 2007. That agreement was described in the Statement of General Procedure Claim (Form 19) filed on 6 July 2009 in the following terms:

[T]hat in return for Ms Kalaya Manonai acting as Ms Khamtiang Burns' agent in relation to Khamtiang Burns' property settlement Ms Kalaya Manonai would receive 10% of the total settlement and receive either one of the matrimonial cars or an all expense paid holiday to Ms Khamtiang Burns' home town Khon Kaen in Thailand. The house and property in Thailand value add when discovery [sic].

5 The total amount claimed by Ms Manonai was $35,036. There was also a claim for 10% of the house in Khon Kaen, Thailand and 'court costs'. The $35,036 was said to comprise:

being 10% of $120,000 cash component of Ms Burns' matrimonial settlement

being 10% of $75,000 superannuation to which Ms Burns had an entitlement as part of the matrimonial proceedings

being the approximate value of a Nissan Pulsar or an all expenses paid holiday

being legal fees Ms Manonai had paid on behalf of Ms Burns

6 Ms Burns filed a detailed defence disputing that there had been an agreement of the type claimed by Ms Manonai or that she owed any money to Ms Manonai.

7 The Statement of Defence stated that Ms Burns had separated from her husband in 2007 and engaged solicitors to act on her behalf in regard to a property settlement. In October 2007 Ms Manonai told Ms Burns that she was a lawyer, that she had worked with another lawyer, Mr David Leask, for many years and suggested that Ms Burns engage Mr Leask as her lawyer.

8 The defence stated that a meeting with Mr Leask was arranged for 26 October 2007. Prior to that meeting Ms Manonai told Ms Burns that Mr Leask would require a cash payment of $500 and that she would also require payment of $300 for her own services. It was alleged that Ms Manonai said that Mr Leask would charge less for cash as he did not want to pay tax.

9 Further payments were requested by Ms Manonai for Mr Leask as follows:

10 The defence claimed that further payments were requested by Ms Manonai for her own services as follows:

11 Critically, the defence claimed that Ms Burns had paid to Ms Manonai the following amounts:

However, the statement of defence gave an incorrect total of $11,500. The amounts actually said to have been paid appear to total the amounts requested prior to the first meeting ($800), subsequently for legal fees ($10,500) and for Ms Manonai's own services up to May 2008 ($1,000). The incorrect total of the amounts paid has some significance to the findings made by the magistrate at trial.

12 The defence claimed that Mr Leask rendered three accounts to Ms Burns being:

13 Ms Burns denied any agreement to pay a percentage of her property settlement to Ms Manonai or to give her a car or pay for a holiday. She claimed that she volunteered to give Ms Manonai 'something' when the matrimonial proceedings were finalised, but this voluntary offer did not constitute a contract or any intention to enter into legal relations with Ms Manonai. It was denied that Ms Manonai was Ms Burns' agent in the proceedings, although it was accepted that she acted as a conduit and interpreter in that regard. It was said that any such assistance ceased in May 2008.

14 The defence stated that even if there was an agreement as alleged it was void or voidable as being contrary to public policy or was unconscionable. Alternatively, it was claimed that Ms Manonai had been adequately remunerated for her services.

15 Ms Burns also filed a counterclaim for $3,960. This was said to be the balance of monies paid by Ms Burns to Ms Manonai that could not be accounted for. It was calculated on the basis that Ms Burns had paid the sum of $11,500 to Ms Manonai who in turn paid $7,540 to Mr Leask leaving a balance of $3,960.

16 The dispute proceeded to a hearing in the Magistrates Court on 20 January 2010. Ms Manonai represented herself. Ms Burns was represented by a lawyer.

17 Ms Manonai gave evidence in support of her claim. The evidence-in-chief largely consisted of her reading and adopting a statement dated 16 November 2009. In that statement Ms Manonai said that she had been introduced to Ms Burns in October 2007. She said that Ms Burns had asked her if she knew of a lawyer as she was not happy with the lawyers who were then acting for her. Ms Manonai denied ever telling Ms Burns that she herself was a lawyer. She said that she took Ms Burns to see Mr Leask on or about 29 October 2007.

18 Ms Manonai said that she thereafter worked for Ms Burns as her agent to translate and interpret correspondence between Mr Leask and Ms Burns. She said that on three occasions Ms Burns had asked her to go to her former matrimonial home to collect some belongings. She said that she had received amounts of $150 in cash, $3,250 in cash and a cheque in the amount of $5,000 from Ms Burns. She said that from these funds she had paid Mr Leask $6,890 on behalf of Ms Burns.

19 Ms Manonai said that Ms Burns offered to take her on an all-expenses-paid trip to Thailand 'as a bonus'. She said that Ms Burns could not drive and therefore offered to give her Nissan Pulsar motor vehicle to her if she was able to get it from her husband. She said that Ms Burns told her that she, Ms Burns, did not care about money but 'wanted to take her husband and another Thai woman that she said adultery [sic] with her husband ... to the Family Court'.

20 Ms Manonai said that she told Ms Burns that her services would cost a minimum of 10% of the total settlement plus legal costs and that Ms Burns responded by saying that she did not care about money or how much she would receive but she did not want her husband to get anything from the settlement.

21 The transcript of Ms Manonai's evidence is incomplete. However, the District Court judge was able to provide a brief summary of the balance of her evidence based upon the magistrate's handwritten notes. It has not been suggested that that summary is incorrect. On that basis, in cross-examination Ms Manonai said she agreed to assist Ms Burns for 10% of her matrimonial property settlement which Ms Manonai thought to be a 'fair amount'. Further in cross-examination Ms Manonai said that all correspondence to Ms Burns from Mr Leask was sent to Ms Manonai until May 2008. As a result she received the two accounts directed to Ms Burns to that time from Mr Leask for sums of $350 and $300 respectively. She said that Mr Leask authorised her to collect money on his behalf. She said that she paid Mr Leask's final account of $6,890 on 11 December 2008 by drawing a cheque on her own account.

22 The defence called Ms Burns who also adopted a statement in her evidence-in-chief. In that statement she said that she was born in Thailand and came to Australia about 20 years ago. She said that she went to school for four years in Thailand. She said that she cannot read or write English. She can speak some English and understands some but not well. She said that she did not have much understanding of business matters.

23 Ms Burns said that she married Charles Burns in October 1990. They separated in December 2006. In 2007 negotiations for a property settlement began. Initially she had a firm of solicitors other than that of Mr Leask acting for her. She had never dealt with lawyers before this.

24 Ms Burns met Ms Manonai prior to October 2007. Ms Manonai told her that she was a lawyer and had worked with another lawyer, Mr Leask, for many years. She said that Ms Manonai told her that she had been to court with Mr Leask 'for many Thai people'. Ms Manonai said that Ms Burns should get Mr Leask to act as her lawyer as he would charge less if paid in cash as he did not want to pay tax. She said that Ms Manonai said she would help her with the case and would also be assisting Mr Leask in handling the matter.

25 Ms Burns said that she told Ms Manonai that after the case was finished she would give her something for helping her. She did not say what this would be.

26 On or about 29 October 2007 Ms Manonai took Ms Burns to Mr Leask's office in Fremantle. She met Mr Leask and agreed to engage him as her lawyer in the property proceedings. A few days prior to the meeting with Mr Leask, Ms Manonai had told her that Mr Leask would need $500 in cash for the first meeting. Ms Manonai also said that she wanted $250 for helping her. Ms Burns said that she gave Ms Manonai $750 in cash as a result.

27 Ms Burns said that until May 2008 Ms Manonai helped her with the case. She said that Mr Leask sent letters to Ms Manonai's address and Ms Manonai translated them for her and gave Mr Leask instructions.

28 In November 2007 arrangements were made for Ms Burns to obtain some clothes and other belongings from the former matrimonial home. Ms Burns said that Ms Manonai made the arrangements for this with the assistance of Mr Leask. She said that she and Ms Manonai went to the house on three occasions.

29 Also, in November 2007 Ms Manonai told her on two occasions that Mr Leask wanted $500. On each occasion she also told Ms Burns that she wanted $150 for her own services. In consequence Ms Burns gave Ms Manonai two amounts of $650 in November 2007. She said she also paid for some petrol for Ms Manonai's husband's car and gave Ms Manonai some of her clothes.

30 Sometime in early January 2008, Ms Manonai told Ms Burns that Mr Leask wanted a further $2,000. She also said that she again wanted $250 for her own services. Ms Burns did not have enough money and had to borrow it from a friend.

31 On 10 January 2008 Ms Burns went to a Thai supermarket in High Street, Fremantle, which was run by Ms Manonai. She went there with two friends. On this occasion she gave Ms Manonai $2,250 in cash. She said that one of her friends said that they should write a note regarding what had been paid. Ms Burns' friend wrote the note which was then signed by Ms Manonai. Ms Burns produced a handwritten note that she said confirmed this.

32 Sometime between January and April 2008 Ms Manonai told Ms Burns that Mr Leask wanted a further $3,000 and that she wanted a further $250 for helping her. She gave Ms Manonai a further $3,250 at her shop in Fremantle.

33 In about late April 2008 Ms Manonai told Ms Burns that the property settlement was nearly finished but that Ms Burns needed to complete some paperwork. She also said that Mr Leask wanted a further payment of $5,000. Ms Burns did not have enough money and obtained a loan from a friend. She then visited Ms Manonai at her shop in Fremantle in company with another friend and handed over a cash cheque for $5,000. She said that Ms Manonai told her that the property settlement would be finalised soon. She said that she became suspicious when she did not receive the money from the settlement.

34 In about June 2008 Ms Burns went to see Mr Leask. She took a friend with her. The friend said that Ms Burns had paid money to Ms Manonai and asked Mr Leask if he had received it. Mr Leask said he had not. He also said that Ms Burns' case was not finished and that she should not speak to Ms Manonai anymore. From that point Ms Burns did not speak to Ms Manonai. From about June 2008 Ms Burns was assisted by another friend in giving instructions to Mr Leask.

35 The property settlement was finalised in August 2008. In consequence Ms Burns received property and an entitlement to her ex-husband's superannuation which she estimated to be worth $231,368 in total.

36 Ms Burns said that she did not agree to give Ms Manonai 10% of the property settlement. She said that she had told Ms Manonai that she would give her something when it was finished but no percentage or figure was ever mentioned. She said she only offered to give her something because 'it is the Thai way to give something to somebody who does you a favour'.

37 It should be noted that the amounts Ms Burns said she had paid to Ms Manonai differed slightly from those referred to in her Statement of Defence. The amounts Ms Burns said in her evidence that she had paid to Ms Manonai totalled $12,550. This included amounts totalling $1,050 that Ms Burns said Ms Manonai had asked to be paid for her own services.

38 Mr Leask was called as a witness for the defence and his statement dated 16 November 2009 was tendered in evidence. In Mr Leask's statement he said that in about October 2007 he received a telephone call from Ms Manonai. She asked him if he would represent another Thai lady. Ms Manonai brought Ms Burns to see him on or about 29 October 2007. Ms Burns instructed him to take over conduct of a property settlement matter. She could not speak English well and instructed him to send correspondence to her to be put in the care of Ms Manonai. He did so until about May or June 2008 after which he sent correspondence directly to Ms Burns' address.

39 Mr Leask said that settlement of the matrimonial dispute occurred on 21 October 2008. On 11 October 2008 he received a fax from Ms Manonai. In that fax Ms Manonai claimed to have had an agreement with Ms Burns whereby she was entitled to receive, amongst other things, 10% of the settlement proceeds. He said that Ms Burns denied any such agreement and claimed that she had paid $11,000 to Ms Manonai.

40 On 26 November 2008 Mr Leask wrote to Ms Manonai asking her to pay his firm's account to Ms Burns in the sum of $6,890. He also asked her for a statement of the amounts paid to her by Ms Burns and the dates of those payments. On 7 November 2008 he received a fax from Ms Manonai claiming that she had received $8,400 from Ms Burns. He then tried to arrange a meeting between Ms Burns and Ms Manonai to resolve the dispute between them.

41 Mr Leask said that his firm rendered three accounts on 1 November 2007 for $350, on 3 April 2007 for $300 and on 23 October 2008 for $6,890. Each of those accounts was paid by Ms Manonai. He said that an amount of $750 was also paid into his trust account by Ms Manonai which he used to settle an outstanding account to Ms Burns' former solicitors. He said that he neither requested nor authorised Ms Manonai to collect money on his behalf or to ask for any payment on his behalf. He denied that he had ever asked for payment in cash or said that if he was paid in cash he would charge less.

42 Ms Nongnapat Kanicha (or Vinijcha in her statement) was also called as a witness for the defence. She gave evidence that on 10 January 2008 she had gone to Ms Manonai's supermarket in Fremantle with Ms Burns. At that time Ms Burns gave Ms Manonai $2,250 in cash. She said that she knew how much was given as she had counted the money. She confirmed that a note had been made in a notebook at the time and signed by Ms Manonai. She identified the note, the material part of which she said was in her writing.

43 Ms Wasana Premaset (or Poonwiset in her statement) was also called as a defence witness. Her evidence was that in April 2008 Ms Burns had asked her to take her to a lawyer's office because she could not drive. They drove to Fremantle together with Ms Premaset's boyfriend, Mr Wayne McKinlay. They in fact went to an Asian supermarket in High Street Fremantle where they met Ms Manonai. She said she asked Ms Manonai whether she was a lawyer and Ms Manonai said that she was and that she had worked with 'David' for a long time.

44 Mr Wayne McKinlay was also called as a witness for the defence. He confirmed the visit to Ms Manonai's supermarket in April 2008. He said he could recall visiting the supermarket on two occasions. On one of those occasions he had read a fax from Leask & Co which contained a number of questions which he assisted Ms Burns in answering. He also said that on one of the occasions Ms Burns gave $5,000 to Ms Manonai.

45 It should be noted that whilst Ms Manonai did cross-examine the witnesses, much of her cross examination was irrelevant and it made no significant impact on the evidence of the witnesses.

46 The magistrate reserved his decision. On 10 February 2010 the magistrate dismissed the appellant's claim and allowed the counterclaim to the extent of $2,160. The magistrate summarised the evidence and the competing claims. He then said:

Clearly, some monies were paid by the defendant to the plaintiff at various stages, some of which were understood by the defendant to be payments to the plaintiff for her services, as distinct from Mr Leask's services. I accept that the defendant was ill-educated and unable to read or write English and was also unfamiliar with the Australian legal system.

I am unable to find whether the plaintiff represented that she was a lawyer, but it is clear to me that the defendant was told that the plaintiff was helping Mr Leask in his representation of the defendant. I am persuaded by the defendant that she paid the plaintiff certain sums of money understanding that these were fees specifically for the plaintiff's services totalling $1,050, and they were paid between October 2007 and April 2008.

I find that these sums were requested by the plaintiff at or about the times they were paid, and this does not sit well with the alleged agreement that 10 per cent of property settlement proceeds would constitute the consideration. But it does establish that the sum of $1,050 was agreed upon as a consideration for the plaintiff's services.

In addition I refer to Mr Leask's evidence that he did not normally seek money on account of costs in certain Family Court property settlement matters to be inconsistent with the plaintiff's evidence that he had requested her to obtain the money paid on account by the defendant. I also accept Mr Leask's evidence that he did not tell the plaintiff to tell the defendant that if she paid in cash his fees would be less because he did not have to pay tax.

Mr Leask's evidence was also that prior to June 2008 he did not know if the plaintiff collected fees for him from Ms Burns. The plaintiff's evidence that , when she claimed 10 per cent of the settlement proceeds, Mr Leask had replied, asking her for a list of the amounts which the defendant had paid for his fees and the dates of such payment, tends to be inconsistent with her assertion that Leask had told the plaintiff to obtain costs on account.

I am not persuaded that the agreement alleged by the plaintiff was ever made. I find that the plaintiff did pay Mr Leask's fees on behalf of the defendant in the sum of $6,890 on 11 December 2008, and had earlier paid three other sums totalling $1,400, making a grand total of $8,290. I find that the total amount paid by the defendant to the plaintiff, including the amounts which she knew to be specifically for the plaintiff's own services as an interpreter, was $11,500, paid between the end of October 2007 and May 2008, leaving a shortfall of $2,160 unaccounted for by the plaintiff.

Given the ignorance of the defendant, both as to the English language and procedural and legal matters relating to Family Court actions, I find it more probable than not that the shortfall of monies paid to the plaintiff by the defendant were not applied to the purposes intended by the defendant, that is, the payment of Mr Leask's fees, and remain held to the defendant's use by the plaintiff.

As to the question of fair recompense to the plaintiff for service which she undoubtedly did render, I am satisfied that the sum of $1,050 referred to above was reasonable and mutually agreed payment for those services. Accordingly, I dismiss the claim in full and allow the counterclaim in the amount of $2,160 (ts 6 - 7).

47 The appellant appealed to the District Court. Initially there were four grounds of appeal although this was later expanded to ten. It is not necessary to repeat those grounds here. The grounds are not the same as those that have been advanced on the present appeal. It should be noted that at that stage Ms Manonai continued to represent herself.

48 One of the issues raised in the District Court appeal was whether the magistrate had erred in concluding that Ms Burns had paid $11,500 to Ms Manonai. That issue was dealt with by the District Court judge in his decision. His Honour dismissed the appeal and in doing so said that the amount of $11,500 appeared to be a mis-statement. He noted that $11,500 was the incorrect total claimed in the Statement of Defence as being the total amount paid by Ms Burns to Ms Manonai. In this regard his Honour said:

In passing, it should be noted that in delivering his oral reasons, the learned magistrate may have meant to find that in addition to the sum of $11,500, Ms Burns also paid instalments of $1,050 to [Ms Manonai] as set out in his oral reasons for decision at ts 6. However, no point is made of this by Ms Burns. Ms Manonai is not prejudiced by it. Indeed, it works in her favour [12].

49 His Honour also concluded that there was a proper basis for the magistrate to prefer Ms Burns' evidence over that of Ms Manonai. He noted that Ms Manonai's evidence was inconsistent with that of Mr Leask in that she said Mr Leask authorised her to collect money on his behalf but that was denied by him. He also noted in this regard Mr Leask's letter of 26 November 2008 asking for a statement of funds paid to Ms Manonai by Ms Burns. These, and other matters, had also been referred to by the magistrate. His Honour also noted that the magistrate had the benefit of seeing and hearing the witnesses and referred to Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.

1. The learned judge erred in law in failing to find that the magistrate had erred in law because the learned magistrate's reasons for decision were inadequate to discharge his duty to provide sufficient reasons for arriving at his decision in that they did not identify with clarity:

(a) the evidence (if any) of each of the witnesses at trial he accepted;

(b) the evidence (if any) of each of the witnesses at trial he rejected;

(c) the process of reasoning by which he made the finding that the agreement alleged by the appellant had not been made; or

(d) the process of reasoning by which he made the finding that the respondent had paid to the appellant the amount of $11,500, a finding which was not supported by the evidence of any witness at trial.

1. The learned judge erred in fact, or alternatively mixed fact and law, in finding that appeal ground 1(a) before the District Court had not been made out because the learned magistrate had made an adverse finding upon the credibility of the appellant's evidence in finding that the respondent had in fact paid more to the appellant than the appellant alleged.
2. The learned judge erred in law in that he denied the appellant procedural fairness by refusing the appellant's oral application on 30 September 2010 for an adjournment of the hearing of her appeal in the District Court of Western Australia.

Grounds 1 and 2: adequacy of reasons and credibility findings

51 Section 31 of the Magistrates Court Act 2004 (WA) provides that:

(1) The Court's reasons for a judgment in a case -

(a) need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so;

(b) need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so;

(c) need not canvass all the evidence given in the case; and

(d) need not canvass all the factual and legal arguments or issues arising in the case.

(2) The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.

52 This provision applies both to civil and criminal proceedings; see definition of 'case' in Magistrates Court Act 2004 s 3.

53 Although provisions like s 31 of the Magistrates Court Act are comparatively new, it has long been accepted that judicial officers have a duty to deliver reasons that expose the process by which a decision has been reached. This enables the parties to understand the basis for the decision. More importantly perhaps, it enables a losing party to determine whether or not they have any grounds on which to appeal the decision. Should there be an appeal, adequate reasons enable the appellate court to determine whether any errors of fact or law have occurred: Pettitt v Dunkley [1971] 1 NSWLR 376, 382 - 390; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 256 - 259, 268, 274, 277 - 278; Lloyd v Faraone [1989] WAR 154, 162 - 164; Stojkovski v Fitzgerald [1989] WAR 328, 334 - 335, 340; Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226, 236 - 238 (Pidgeon J), (248 - 249) (Owen J); Betts v Hardcastle [2001] WASCA 35; (2001) 23 WAR 559, 569; Bennett v Carruthers [2010] WASCA 131.

54 In Riley v State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525 Steytler P said:

While it is true that overly elaborate reasons are not required from a trial judge, especially so in criminal trial proceedings in which a prompt outcome is necessary, where one set of evidence is accepted over a conflicting set of significant evidence a trial judge is required to set out his or her findings as to how it is that the one has been accepted over the other: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443, per Meagher JA, and Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 at 282 - 283. Moreover, it is essential that the reasons adequately disclose the intellectual processes which have resulted in the decision: Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 at 248 [73] - [74], per Owen J. It is well accepted that, where there is a right of appeal, the reasons must be sufficient to give effect to that right. If the basis for the decision is not apparent, the losing party cannot know whether there has been a mistake of law or of fact: Carlson v King (1947) 64 WN (NSW) 65 at 66, per Jordan CJ; Pettitt v Dunkley [1971] 1 NSWLR 376 at 387 - 388, per Moffitt JA; Lloyd v Faraone [1989] WAR 154 at 162 - 163, per Malcolm CJ, and Mount Lawley, above, at 282 - 283 [32].

55 Making findings of fact where there is conflicting evidence is an important component of the giving of reasons. If the conflict is on a matter of significance it will usually be a necessary part of the reasoning process to consider whether the evidence of one party can be preferred over that of the other. In Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, Meagher J said:

Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: Selvanayagam v University of West Indies [1983] 1 WLR 585; [1983] 1 All ER 824 (443).

56 The realities of pressure of work and limited time in the magistrate's court must be acknowledged. Section 31 of the Magistrates Court Act obviates any need for a magistrate to canvass all of the evidence given in the case or to canvass all the factual and legal arguments or issues arising in the case. These dispensations appear to recognise the summary nature of proceedings in the Magistrates Court. Reasons can be adequate and comply with s 31 of the Magistrates Court Act without having to be unduly long. It is the substantive content of the reasons rather than their length which is important.

57 In the present case the primary issue was whether the parties had entered into an oral contract in the terms claimed by Ms Manonai. This required the magistrate to make an assessment of the evidence of Ms Manonai and Ms Burns. It is clear from the magistrate's reasons that he accepted the evidence of Ms Burns that she paid sums of money to Ms Manonai on the understanding that these were to be used to meet legal fees and to pay specified sums for the services of Ms Manonai. He found that the amount agreed to be paid for Ms Manonai's services was $1,050 and that this amount was in fact paid.

58 It is equally clear that the magistrate did not accept the evidence of Ms Manonai that the agreement was as she alleged; that is, that she was to receive 10% of the property obtained by Ms Burns in settlement of her matrimonial proceedings plus the value of a car or holiday.

59 In respect of these findings the magistrate set out the evidence which enabled him to make them. He also referred to evidence that conflicted with that of Ms Manonai. It was not necessary, as ground 1 suggests, for the magistrate to identify the evidence of each witness he either accepted or rejected. What was necessary was that he identify those facts that he had accepted in coming to his decision and the reasons for his acceptance of them.

60 There was conflict between the evidence of Mr Leask and Ms Manonai and the magistrate said that he preferred that of Mr Leask. He also found that Ms Manonai's evidence suffered from inconsistency with the letter of 26 November 2008. A court may have regard to what can be legitimately inferred from the reasons: Beale (443), Bennett v Carruthers [28]. It is clearly open to draw an inference from the magistrate's reasons that he made an adverse finding as to the credibility of Ms Manonai.

61 Whether the content of reasons is adequate will depend on the circumstances of the case and the matters that arose for the judge's consideration. The court will look at the reasons as a whole and if necessary in the context of the evidence to determine if they give the sense of what was intended in a way that achieves the required function and purpose: SNF (Australia) Pty Limited v Jones [2008] WASCA 121 [32].

62 Whilst the relevant part of the magistrate's reasons were relatively short they do identify the relevant factual findings and why those findings were made. The findings addressed the issues necessary to resolve the case. In some instances the magistrate also explained why he was unable to make a finding upon the evidence.

63 As to the claim that the finding that $11,500 was paid by the respondent was not supported by the evidence of any witness, it is important to place that finding in the context of all of the material that was before the magistrate. The evidence of Ms Burns was that she had paid a total of $12,550 to Ms Manonai. A total of $1,050 was accepted by the magistrate as having been paid specifically for Ms Manonai's services. Therefore, there was in fact evidence to support that $11,500 had been paid to Ms Manonai; this being the total sum of $12,550 less the $1,050 specifically for Ms Manonai's services. The $11,500 represented the total monies Ms Burns said had been paid on account of legal services.

64 The error the magistrate made appears to have been an entirely arithmetical one. That is, he treated the $11,500 amount as if it included the $1,050 for Ms Manonai's services. He may well have been misled in this regard by the incorrect total of $11,500 appearing in the Statement of Defence. The effect of this error was that in determining how much money remained unaccounted for he deducted not only the legal fees that had been paid but also the $1,050. In consequence, the final figure was arguably $1,050 less than it should have been. This was, as the District Court judge found, an error that only benefitted Ms Manonai.

65 Ms Burns makes no complaint in this regard, possibly because the mistake in the total figure contained in the Statement of Defence may have contributed to the magistrate's error.

66 An error in the reasons does not necessarily lead to a conclusion that the reasons are deficient in a material sense. It is well recognised that even where reasons are found to be inadequate it does not follow that there is necessarily an appealable error. An appeal court will only interfere where the inadequacy of the reasons is such to give rise to a miscarriage of justice: Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [29]. In the present case there has plainly been no miscarriage of justice. The error regarding the mathematical calculations was to the benefit of Ms Manonai and Ms Burns has not chosen to challenge it.

67 As regards ground 2, it is contended that the District Court judge erred in finding that the magistrate made an adverse finding on the credibility of Ms Manonai. In particular, it is said that the magistrate made no express finding that he rejected Ms Manonai's evidence that the total amount paid to her was $8,400. This ground is linked to ground 1.

68 The magistrate clearly accepted the evidence of Ms Burns as to the amounts she paid to Ms Manonai. Though he incorrectly totalled that figure as being $11,500, it was necessarily implicit that he did not accept Ms Manonai's evidence in this regard. Nor did the magistrate accept that the agreement was as Ms Manonai had asserted. As I have noted, it can be inferred from the magistrate's reasons that he made an adverse finding regarding Ms Manonai's credibility. Accordingly, the District Court judge did not err in stating that such an adverse finding had been made.

70 When the matter came on for hearing of the appeal in the District Court on 22 September 2010 Ms Manonai was again unrepresented. She sought an adjournment for the purposes of seeking legal representation. That adjournment was denied.

71 Ms Manonai filed three sets of grounds for appeal. The first was a repetition of the indorsement of claim on her original claim in the Magistrates Court. At a directions hearing on 25 May 2010, Ms Burns' solicitor foreshadowed the possibility of an application to strike out the notice of appeal. On 3 June 2010 Ms Burns' solicitors wrote to Ms Manonai pointing out the defects in the grounds of appeal and strongly urging her to obtain legal advice. Ms Manonai then filed more detailed grounds of appeal on 14 June 2010 followed by more extensive grounds on 29 June 2010. At a further directions hearing on 29 June 2010 the appeal was listed for hearing on 22 September 2010.

72 Ms Manonai submitted to the District Court judge that she had made efforts to obtain a solicitor but had been unable to locate one who was able to appear for her on the hearing date. There was no evidence as to when she first attempted to get advice or representation. She did refer to previously having had a lawyer assisting her but that that person did not understand, got upset and would not continue to help her. She said she had then contacted other lawyers. At some point shortly before the hearing date Ms Manonai had approached a firm of solicitors to represent her but that firm was unable to appear at such short notice.

73 The District Court judge then indicated to Ms Manonai that his preliminary view was that the appeal should proceed, but that he would go through the grounds with her to see if she could persuade him that she should have more time (ts 10). His Honour then spent some time taking Ms Manonai through the grounds and identifying her contentions. Some of those grounds were self-evidently unmeritorious. Nonetheless, his Honour gave Ms Manonai every opportunity to advance her arguments. When asked if there was anything more she wished to say, Ms Manonai said she was very tired (ts 62). His Honour then adjourned the hearing to 30 September 2010. He also provided Ms Manonai with the opportunity to make written submissions, which were to be filed and served by 29 September 2010.

74 On 30 September 2010 Ms Manonai again represented herself. She told the District Court judge that she had been unable to obtain a lawyer to represent her. She had, however, filed written submissions and confirmed that a lawyer had given her some assistance with them (ts 67). She again sought an adjournment for legal advice, though she could not identify anything additional that might need to be said in support of her appeal. That application was refused, his Honour referring to the opportunity to obtain representation already afforded. He then heard further oral submissions from Ms Manonai in respect of her grounds of appeal.

75 A decision whether to grant or refuse an adjournment is a discretionary decision. An appellate court will seldom feel justified in reviewing such a decision: Bloch v Bloch [1981] HCA 56; (1981) 180 CLR 390, 395 (Wilson J).

76 The refusal of an adjournment may amount to a denial of procedural fairness if it is likely to deny a party a reasonable opportunity to present his or her case: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 [40]; Touma v Saparas [2000] NSWCA 11 [27].

77 The primary judge gave reasons for refusing the adjournment, namely that he considered Ms Manonai's case to have considerable problems which could not be rectified by a solicitor. He also referred to the ample opportunity afforded to the appellant to identify her grounds of appeal and seek legal advice in respect of them. It should also be noted that any adjournment was opposed by counsel for Ms Burns.

78 It is not suggested that any of the grounds of appeal before the District Court were misunderstood or that there were any submissions that could have been made on Ms Manonai's behalf if an adjournment had been granted. It has not been established that any serious injustice was caused by the refusal to adjourn. In these circumstances, there is no proper basis for reviewing the decision to refuse the adjournment. This ground has not been made out.