IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
 
S ECI 2024 01320

BETWEEN:

A. ATANASOV NOMINEES PTY LTD trading as ATANASOV FAMILY TRUST 	Appellant	
		
v  		
		
MATTHEW COONEY	Respondent	

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JUDGE:	Daly AsJ 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	18 October 2024	
date of JUDGMENT:	25 October 2024	
CASE MAY BE CITED AS:	A. Atanasov Nominees Pty Ltd v Cooney	
MEDIUM NEUTRAL CITATION:	[2024] VSC 653	

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ADMINISTRATIVE LAW — Appeal or a question of law under s 109 of the Magistrates’ Court Act 1989 (Vic) — Whether magistrate erred in summarily dismissing proceeding at the hearing of the appellant’s default judgment application without providing an opportunity to present further evidence — Magistrate's obligation to hear party before making final determination – Denial of opportunity to present further evidence — Denial of procedural fairness — Failure to warn appellant before dismissal — Kioa v West (1985) 159 CLR 550 and Stead v State Government Insurance Commission (1986) 161 CLR 141, applied — Appeal allowed.

PRACTICE AND PROCEDURE — Magistrates’ Court General Civil Procedure Rules 2020 (Vic) — Application for default judgment for breach of contract — Whether magistrate exceeded powers by dismissing claim on substantive merits at default judgment hearing — Scope of power under ord 21 of the Magistrates’ Court General Civil Procedure Rules 2020 (Vic) and s 63 of the Civil Procedure Act 2010 (Vic) — Alleged breach of post-employment restraints and misuse of confidential information — Damages and injunctive relief sought — Whether unsworn witness statements and insufficient evidence of causal link between alleged conduct and claimed losses justified dismissal of proceeding — Whether open to find that the appellant’s proceeding had no real prospect of success — Whether magistrate’s discretion miscarried — Dismissal of proceeding without full hearing on merits — Refusal to allow rectification of evidentiary deficiencies — House v R (1936) 55 CLR 499, considered — Whether dismissal was unreasonable or plainly unjust — Appeal allowed.

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APPEARANCES:
	Counsel	Solicitors	
For the appellant 	Mr D Merriman of counsel	Rankin Business Lawyers	
			
No appearance for the respondent			

HER HONOUR:
Introduction
1	This is an appeal brought by A. Atanasov Nominees Pty Ltd (trading as Atanasov Family Trust) (‘Allcar’) pursuant to section 109 of the Magistrates’ Court Act 1989 (Vic) (’Act’) challenging a decision made by a magistrate sitting at Dandenong on 23 February 2024.  The appeal raises two questions of law:
(a)	whether the learned magistrate erred in failing to afford Allcar procedural fairness by summarily dismissing its complaint (‘proceeding’) without providing it with an opportunity to present its case; and
(b)	whether the learned magistrate’s discretion miscarried by dismissing the proceeding at the conclusion of Allcar’s unsuccessful default judgment application.
2	The appeal was undefended.  At the conclusion of the hearing of the appeal, I made orders allowing the appeal, and remitting the proceeding to the Magistrates’ Court, differently constituted.  My reasons follow.
Background
3	Allcar operates a tow truck business located in Dandenong South, using approximately five vehicles, and employing a similar number of drivers.  The defendant in the proceeding and the respondent to this appeal, Mr Matthew Cooney, is a former employee of Allcar.
4	Allcar employed Mr Cooney from about 7 March 2022.  Mr Cooney left Allcar’s employ by mutual agreement in April 2023.  The employment agreement between them (‘employment agreement’) was said by Allcar to contain terms prohibiting the misuse of Allcar’s confidential information by Mr Cooney, and a term which prohibited Mr Cooney from inducing or attempting to induce Allcar’s employees to leave Allcar within a specified restraint area and a specified restraint period.
5	In the proceeding, Allcar alleged that Mr Cooney breached the employment agreement by his misuse of confidential information and by his interference with the employment relationships between Allcar and two of its employees, Messrs Joshua James and Jamie Rice (‘employees’).  Allcar sought both injunctive relief and punitive damages in the sum of $40,000.
6	Allcar alleged that between 24 April 2023 and 10 May 2023, Mr Cooney used confidential information, being the personal contact details of the employees, to contact the employees.  Allcar alleged that Mr Cooney made disparaging remarks about Allcar’s working conditions and practices, and encouraged or induced these employees to resign from Allcar and join another company.
7	Allcar claimed that, as a result, the employees resigned from Allcar.  Allcar claimed that it suffered loss and damage, including the costs associated with recruiting and training new staff, loss of business opportunities, and reputational harm.  Allcar claimed compensation for financial loss, and sought injunctive relief to prevent further breaches.
Procedural History
8	The proceeding was issued on or about 7 August 2023, and served on Mr Cooney on 27 October 2023.  Mr Cooney did not file a defence.  Consequently, on 22 December 2023, the solicitors for Allcar filed an application for default judgment (‘default judgment application’) pursuant to Order 21 of the Magistrates’ Court General Civil Procedure Rules 2020 (Vic) (‘Rules’).
9	Order 21 of the Rules provides relevantly, as follows:
21.01 Plaintiff may apply for order
(1)	If a defendant does not give notice of defence within 21 days after the service of a complaint or of the giving of leave to defend, or within any other time fixed by the Court for giving notice of defence, the plaintiff may apply for an order.
(2)	An application under paragraph (1) must be in Form 21A.
21.02 Affidavit required
An application under Rule 21.01 to which Rule 21.01(2)(a) applies must be filed with the registrar and must be accompanied by—
…
(b)	in any other case—
(i)	an affidavit or declaration of service of the complaint;
(ii)	an affidavit or affidavits verifying the complaint and the nature and extent of the injury, loss or damage suffered by the plaintiff.
21.04 Registrar may make order or refer to Court
…
(4)	If an application has been made to which Rule 21.02(b) applies, the registrar must refer the matter to the Court for decision.
(5)	If the registrar refers an application to the Court, the Court may—
(a)	make the order sought in the application;
(b)	direct that a further affidavit or affidavits be filed;
(c)	give directions as to the application;
(d)	refuse to make the order sought in the application;
(e)	make any other order it considers appropriate.
…
10	On 8 January 2024, the learned magistrate made orders on the papers (‘orders’) adjourning the hearing of the default judgment application to 23 February 2023 with an estimated hearing duration of 20 minutes.  The orders provided that by 16 February 2024, Allcar was to file:
(a)	affidavits setting out the basis on which damages are claimed, including all evidence relied upon to establish quantum, and the evidence relied upon to support the injunctive relief sought; and
(b)	an outline of submissions setting out the basis upon which it asserts punitive or exemplary damages are applicable, and the basis for the injunctive relief sought, along with draft orders.
11	Allcar complied with the orders, filing:
(a)	an affidavit of Mr Mile Atanasov, a director of Allcar, dated 16 February 2024, to which was exhibited unsworn statements of the employees and another Allcar employee, Mr Regan Burgess, dated 11 May 2023 (‘statements’), attesting to Mr Cooney’s communications with them after his departure from Allcar’s employ, along with a spreadsheet containing the data said to underpin the calculation of Allcar’s claim for loss and damage; and
(b)	an outline of submissions addressing the legal basis for the claims.  In its outline of submissions, Allcar submitted, among other things, as follows:
1.	These submissions are made in relation to the plaintiff's complaint, and to set out:
a.	The basis upon which it asserts punitive or exemplary damages against the Defendant; and
b.	The basis for, and draft orders of, the injunctive relief sought.
2.	The Plaintiff submits that the Defendant breached his obligation under his employment contract.
3.	Specifically, the breaches include post-employment restraints, containing provision for punitive or special damages.
4.	The Plaintiff has suffered financial loss and damage as a result of the Defendant's breaches.
5.	The Defendant's conduct is blatant, and if unrestrained, causes further potential damage to the business.
6.	The Plaintiff submits that punitive damages are necessary to act as a general and specific deterrent in the circumstances, to prevent further or future instances, occurring from the Defendant, or other employees.
12	The statements were not signed.  However, the statements went into some detail regarding the communications between them and Mr Cooney, and between them and another former Allcar employee, Mr Wayne Martin.  While it is not necessary for the purpose of these reasons to go into what Mr Cooney said to the employees in any detail, the statements do evidence numerous attempts by Mr Cooney to ‘poach’ the employees, apparently unsuccessfully, at least as at 11 May 2023.  The statements also record threats made by Mr Cooney to report Allcar to various regulatory authorities.
13	Mr Atanasov deposed to Mr James and Mr Rice leaving their employment with Allcar on 27 July 2023 and 23 August 2023 respectively.  Mr Atanasov deposed that:
I believe that the statements made by [Mr Cooney] to [the employees] directly or indirectly affected their decision to leave their employ with the Plaintiff.
14	Mr Atanasov deposed further that he estimated that Allcar had suffered financial and economic loss of approximately $75,000 due to Mr Cooney’s alleged breach of contract.  Those calculations were based upon an assumption that each tow truck driver employed by Allcar earned revenue of $1,500 per day.  Mr Atanasov deposed to having required four weeks to fill each of the employees’ positions once they resigned from Allcar.
15	At the hearing of the default judgment application on 23 February 2024 (‘hearing’), Allcar was represented by its solicitor, Mr Lee.
16	At the commencement of the hearing, the learned magistrate raised his concerns regarding Allcar’s evidence, criticising in particular:
(a)	the sufficiency and credibility of the statements, which were unsworn and therefore were said by the learned magistrate to be of limited evidentiary value;
(b)	the lack of any causal link between Mr Cooney’s alleged conduct and the resignation of the employees (‘causation issue’); and
(c)	the quantification of the claimed damages, with the learned magistrate stating that the evidence did not substantiate the amount sought, and by his calculations, the actual loss and damage to Allcar by reason of the resignation of the employees was considerably less than that claimed by Allcar.
17	The learned magistrate then proceeded to make findings regarding the credibility and weight of the evidence presented by Allcar, which led him to conclude that Allcar had not established that Mr Cooney’s alleged breaches had induced the employees to leave Allcar’s employ, or that Allcar had suffered the losses claimed by it.  At the conclusion of the hearing, the learned magistrate dismissed the proceeding in its entirety.
18	The transcript of the hearing is reproduced below (emphasis added to highlight the learned magistrate’s key findings):
HIS HONOUR: … Okay. I have a number of problems with the materials. First of all in terms of establishing the claim, based on the affidavit material…
[Mr Atanasov] sets out in his affidavit, um, a number of matters, which cause me significant concern. I'll deal with them in order of how they occur to me, in terms of whether or not I could be satisfied the, ah, claim is made out, even on a default judgement basis.
The first is that he attaches unsworn, unsigned, ah, what he, ah, described as adopted or confirmed witness statements from a person by the name of Joshua James, a person by the name of- ah, have I got that right-yes, Joshua James - a person by the name of Jamie Rice, and a person by the name of Regan Burgess.
Now I've read through those, and the basis on which the claim is made is that two of those persons left the employ of the Company following overtures – I’ll use that word as neutral word for the moment - by the defendant, Matthew Cooney, in breach of the employment contract, to encourage them to leave their place of work and go and work for a company that Mr Cooney was then working for, as I understand it.  From the content of one of those statements, excepting that it's unsworn, unsigned, that it appears that Mr Cooney and another former employee of the plaintiff company were working doing rubbish removal of some sort in Dandenong.  Now if I go to each of those statements it seems to me that the highest I could put on them, accepting for a moment they're unsworn and unsigned, is that they are not evidence that either of those two employees actually left the business as a result of anything done by, um, Matthew Cooney, or for that matter, ah, the other person who is referred to as leaving the business, Wayne Martin, who apparently was working with Matt - Matt – Matthew Cooney at another location.  The reason I say that is because if one goes to the unsigned statement of Joshua James, for example, at paragraph 58, referring to, ah, Matthew Cooney's, ah, repeated calls - and there were a significant number of calls - was he made me curious.  So, yep, he made me curious, because what he was saying about better pay, etcetera - paragraph 59, in reference to, ah, rubbish removal, where Matthew Cooney was supposedly trying to get him to go to work, he says, "No amount of money could pull me back into that line of work.” Paragraph 60, he tells, ah, Matthew Cooney as a - well, maybe not – I’d have to look at their thing, it might just be a statement, an assertion he makes, rather than something he says to Matthew Cooney. But anyhow, it says that, “I wasn't going to leave Allcar,” which is the plaintiff company, “I had had enough” making reference to Matthew Cooney's overtures.  At 61, “I want Matt” – “Matt” – “Matt to stop contacting me and harassing me about leaving Allcar.”  So he’s had enough.  But at no stage does it indicate he’s willing to leave Allcar, the plaintiff company, in response to, ah, the pressure applied by Matthew Cooney.  Similarly, if I go to Jamie Rice, at paragraph 28, he’s referring to a conversation with Matt - Matthew Cooney – “I told him I was happy where I was. With the” – “happy with the income, and not looking to transition to another company.”  And at paragraph 30, ah, he says, “I just want to get on with this” – “with the” – “with the job, and not be contacted by Matt (or Wayne)” - so that's reference to the other person – “about this matter.  And that the" – “once” – “since I’ve” – “I’ve since blocked his phone number.”  And then if we tum to the third witness statement - if it’s what it should be called - of Regan Burgess, who didn’t leave the company - he says at paragraph 13 subparagraph (c), “I tried to shut down the conversation and said” - and this is reference to a conversation with Mark- Wayne Martin, not Matthew Cooney – “I live really close.  I don’t want to drive to Dandenong every day.”  At 13 (d) Wayne then said, “I don’t have the authority to offer you a job anyway." Anyway.  And at 13 (f) “I also said I can’t leave Mile,” referring to Mr Atanasov - um, “he's helping me out.”
Now on that material I can't conclude that, excepting [sic] Joshua James and Jamie Rice, left the employ of the plaintiff company- I can't conclude that they left as a consequence of anything done by, um, Matthew Cooney that offended.
They’re making it clear the exact opposite.  It doesn’t matter what he’s doing, we’re not leaving. So that's the first problem I have with the application for default judgement. I'm just- simply on that basis I'm not able to be satisfied that the claim is made out. But I have a further problem which goes to the credibility of what is said in the affidavit of, ah, Mile Atanasov, and that's this. He claims a total of $75,000, although the claim itself is only for $40,000, he now makes a claim for $75,000.  And he basis that on the following circumstances.  At paragraph 6 of his affidavit – employees in the role of tow truck driver earn revenue of approximately $1500 per day.  (b) The above revenue – start again – the above revenue is earned through jobs that require towing.  And (c) an amount of approximately 1500 per day is usually comprised of five vehicles being towed that day.  So that’s the starting point.  He then in paragraphs 9 and 10 sets out - well refers to attachments MAl and MA2, which are records from his business for April and May of 2023.  Bearing in mind these conversations that are referred to take place in May of ‘23.  So he sets out the history to bear out what he's just said about $1500 per day and five tows a day.  He then sets out in those two documents, um, what appears to be the complete history of the business for those two months, and he references abbreviations for various drivers, MC for Wayne Martin, MC for – sorry, WM for Wayne Martin, MC is Matthew Cooney, JJ is Joshua James, RB is Regan Burgess, and JR is Jamie Rice.  In relation to that I think there’s an error there. JR appears only very few times, but constantly there's reference to a Jamie, although it’s not spelt the same way as Jamie Rice, it’s still a Jamie.  So then the analysis I’ve done, I’ve included Jamie as being JR, so that that means that any tow jobs attributed to Jamie are attributed to Jamie Rice, JR.  When I analyse all that it shows me that far from tow drivers doing five tows a day, and earning $1500 a day, for April, having added up all of the events that relate to (? Jamie James), over the period of April he did 35 tows, which over a 20 - 20-day working period, so five days a week, which I allowed, because that's what it says in the affidavit that they’ll do five vehicles, ah, per day – might have picked it up somewhere else - but there is reference to a five-day week - so I've allowed a five-day week.  So that’s 20 days.  Well, 35 tows over 20 days is 1.75 tows per day. It's nowhere near five.  In May, so Joshua James – James – does 46 tows, which over – and that’s 23 working days, because of the way the weeks work out- that at – works out at exactly two tows per day.  Nowhere near five.  In terms of Jamie Rice, it’s a similar picture.  For April it’s 27 tows per day, so – 27 tows, sorry – so for 20 days that’s 1.35 tows per day.  And for May it’s 58 tows, which for 23 working days is 2.52 – only half of what he’s saying they do. In addition to that, when it comes to earnings, he's saying they earn $1500 a day.  Well, in April Joshua James averaged $411.50 a day over the 20 working days, adding up all of the dollar amounts attributed to him. And in May the total attributed to him was 13,583.90, which is $590 a day.  It’s only a third of the 1500 being claimed.  And the same picture you get for Jamie Rice, for April it was $8588.38, which works out at 429.42 for a 20 day – per day – per tow – per day, sorry – for a 20-day working week –20-day working month, sorry.  And for May it’s 15,156.04, which comes out at 658.96.  Whilst more than a third, but it’s way below a half, for a 23 working day period.  If I add them all together for Joshua James, over the two months he's averaged – sorry – yes, he’s averaged 1.88 tows per day, being 81 tows over 43 days.  And his earnings comes in at, ah, an average of $507.30 a day.  Jamie Rice, ah, over the 43 days is 1.98 tows per day, and the dollar amount averaged over the 43 days, total of 23,744.42 is 552.20 a day.
So in circumstances where the witness statements are unsigned, unsworn, and there is this obvious, um, problem with the affidavit as to the amount of loss, I'm not satisfied I can rely on that material. I'm finding against the plaintiff on the application for default judgement. I'm not satisfied they've made out their claim for those reasons. Anything further?
19	Allcar’s solicitor then sought an opportunity to address the learned magistrate’s concerns, as follows:
MR LEE: Um, the -if, Your Honour Peters[sic], if I can find an explanation for the adopted, but unsworn statements?
HIS HONOUR: I don’t think it helps. I've got to work on evidence.  They are an unadopted, unsworn statements, and in the context, um, where they’re provided attached to an affidavit, which has serious flaws with it, there's no way I can be satisfied, ah, on the balance of probabilities that the claim is established, even though there's no defence filed. I'm not satisfied.  It's just – doesn’t come within cooee of getting across the hurdle. It makes a claim for $40,000.  He's now making a claim on default for 75, supported by material that just does not add up.  There's no way. So I'm finding against the plaintiff on the application for default judgement.  And the claim is dismissed.  Thank you.
MR LEE: As the court pleases.
The amended notice of appeal
20	The questions of law raised by the amended notice of appeal are as follows:
1	Whether the learned magistrate erred by failing to accord the Appellant natural justice by summarily dismissing the Appellant’s complaint in proceeding number MAG-CI-230185732 on 23 February 2024 without granting the Appellant the opportunity to present its case at final hearing.
2	Whether the learned magistrate’s discretion miscarried by considering it appropriate to order that the complaint be dismissed.
21	Allcar relied upon the following grounds of appeal:
1.	The learned magistrate made factual findings as to:
1.1	whether the actions of the Defendant resulted in two employees of the Plaintiff leaving the employ of the Plaintiff; and
1.2	whether the Defendant breached its Employment Agreement with the Plaintiff; and
1.2A	whether the Plaintiff suffered any loss and/or damage in circumstances where:
1.3	the application before the learned magistrate on 23 February 2024 was for judgment for the Appellant for failure by the Respondent to give notice of its defence only;
1.4	the learned magistrate gave no or no sufficient indication to the Appellant that he would, or was considering, determining the Appellant’s complaint at the hearing of the application for default judgment on 23 February 2024;
1.5	the learned magistrate had made no orders that all the evidence on which the Appellant intended to rely in the proceedings be filed (in whatever form) prior to the hearing of the application for default judgment on 23 February 2024;
1.6	the learned magistrate required only, by orders of 8 January 2024, that the Appellant file evidence setting out:
(a)	the basis on which damages are claimed, including all evidence relied upon to establish quantum, and
(b)	the evidence relied upon to support the injunctive relief sought;
1.7	the learned magistrate declined the Appellant’s request for an opportunity to make submissions in response to matters raised by the learned magistrate at the hearing of the Appellant’s default judgment regarding the weight to be given to unsworn statements relied on by the Applicant, raised by the learned magistrate at the hearing of the Appellant’s default judgment application on 23 February 2024; and
1.8	the learned magistrate did not accept the Appellants’ quantification of its loss and damage but accepted that the Appellant suffered some loss and damage.
2.	The learned magistrate erred in considering it appropriate to make an order dismissing the complaint without:
2.1	hearing evidence at a hearing of the complaint;
2.2	giving the Appellant an opportunity for a hearing;
and ought to have
2.3	refused to make an order for the claim in default of defence; and
2.4	listed the complaint for hearing.
22	At the hearing of the appeal, Allcar sought the following orders:
1.	That the appeal be allowed.
2.	The whole of the orders made by his Honour Magistrate Gregory Connellan on 23 February 2024 in proceedings MAG-CI-230185732 (the Proceedings) be set aside.
3.	The Proceedings be listed for directions before a Magistrate, setting the matter down for final hearing.
4.	The Respondent pay the Appellant’s costs of this appeal.
The evidence
23	Allcar filed affidavits which put into evidence:
(a)	the court documents in the Magistrates’ Court proceeding, including the statements;
(b)	a transcript of the hearing (see paragraphs 18 and 19 of these reasons); and
(c)	affidavits of service establishing that Mr Cooney has been served with the court documents in this appeal.
Allcar’s submissions
24	Allcar’s written outline of submissions included a comprehensive and accurate survey of the authorities regarding the obligation of courts to afford the parties before them procedural fairness, the principles governing the grant of default judgment, and the principles governing the exercise of discretion.  These submissions are summarised in the following section of these reasons.
Procedural fairness
25	Allcar contended that the learned magistrate erred in law by summarily dismissing its claims in the proceeding.  By dismissing the proceeding in its entirety, the learned magistrate failed to afford Allcar procedural fairness.  Further, the learned magistrate’s discretion miscarried.
26	Allcar submitted that the principles of procedural fairness are fundamental to the proper administration of justice. As observed by the plurality of the High Court in Assistant Commissioner Condon v Pompano Pty Ltd:
To observe that procedural fairness is an essential attribute of a court’s procedures is descriptively accurate but application of the observation requires close analysis of all aspects of those procedures and the legislation and rules governing them.
27	A party whose rights may be affected by a decision must be given a reasonable opportunity to present their case and respond to adverse material before a decision is made.  As Gibbs CJ observed in Kioa v West:
The fundamental rule is that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power.
28	The High Court of Australia has consistently held that a denial of procedural fairness may invalidate a decision if it can be shown that the outcome may have been different had the breach not occurred.  In Stead v State Government Insurance Commission, (‘Stead’) the Court stated as follows:
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. …
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.
… It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact.  And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.
29	A core element of procedural fairness is the requirement that a party be given adequate notice of the case it is required to meet.  In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs, the High Court stated as follows:
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.
(emphasis added).
30	In International Finance Trust Co Ltd v NSW Crime Commission, the High Court emphasised that procedural fairness is an essential aspect of maintaining the integrity of the judicial process.  Justice Heydon stated as follows:
One of the primary principles on which the judicial process in this country operates is the principle that before any judicial decision is made which has substantive consequences there generally should be a “hearing”.  A hearing takes place before a judge at a time and place of which the moving party has given notice to the defending party.  At it both parties have an opportunity to tender evidence relating to, and advance arguments in favour of, the particular orders they ask for.  This aspect of the rules of natural justice pervades Australian procedural law.  It has several justifications, and their force is so great that exceptions to the hearing rule in judicial proceedings are very narrow.
(emphasis added).
31	In Seltsam Pty Ltd v Ghaleb, Ipp JA (with whom Mason P agreed) surveyed a number of authorities on procedural fairness, and said as follows (emphasis added):
These cases illustrate the general principle that although the basis on which the parties conduct a trial does not bind the judge, if the judge contemplates determining the case on a different basis he or she must inform the parties of this prospect so that they have an opportunity to address any new or changed issues that may arise.
A failure so to inform the parties will ordinarily result in a denial of procedural fairness. A new trial will be ordered if a party is not afforded a fair trial in circumstances where a properly conducted trial might possibly have produced a different result. It will not ordinarily be necessary to lead evidence to prove that the denial of procedural fairness had the potential to affect the outcome; in most cases the facts will speak for themselves.
32	In that case, Basten JA said as follows:
… identifying unfairness should involve identifying a loss of opportunity to deal with a material issue which tends against the interests of the complainant.  That is a factual inquiry in relation to procedural steps adopted by the Tribunal.  This complaint must demonstrate that unfairness, in a practical sense, has occurred in the particular circumstances of the case.
33	Finally, in Aon Risk Services Australia Ltd v Australian National University, the High Court highlighted the need for courts to balance procedural fairness with efficiency, but stressed that natural justice must always remain paramount.  Chief Justice French stated as follows:
Justice is the paramount consideration in determining an application for leave to amend.  Justice requires fairness to both parties.
34	Allcar submitted that the learned magistrate failed to afford it procedural fairness by making substantive findings at the hearing without giving Allcar any prior indication that such findings would be made, and without affording Allcar an opportunity to respond to the concerns raised by his Honour regarding the adequacy of the evidence relied upon by Allcar in support of the default judgment application.  Allcar contended that this failure deprived it of the opportunity to present its case adequately and to address the issues raised by the learned magistrate regarding the sufficiency of the evidence and the quantification of Allcar’s loss and damage.
35	Allcar submitted that the learned magistrate’s decision to dismiss the complaint at an interlocutory hearing, without providing Allcar with an opportunity to respond to the concerns raised by him, failed to meet this standard of fairness, submitting as follows:
… [Allcar] had a legitimate expectation that if default judgment were not granted, the matter would proceed to a final hearing where both parties could present evidence and make submissions.  [Allcar] contends that the learned Magistrate’s failure to follow this course of action constitutes a denial of procedural fairness.
36	Allcar submitted that the learned magistrate erred by making substantive factual findings at the hearing without affording Allcar an opportunity to fully present its case. Specifically, his Honour made findings as to:
(a)	whether Mr Cooney breached the employment agreement;
(b)	whether the actions of Mr Cooney resulted in the resignation of the employees;
(c)	whether Allcar suffered any loss and/or damage as a result;
(d)	whether Allcar’s calculation of its loss and damage was sustainable.
37	Allcar submitted that these findings were made in circumstances where the hearing was held for the sole purpose of the hearing and determination of the default judgment application.  The hearing was, therefore, not intended to resolve the substantive issues in the proceeding.  That the purpose of the hearing was limited to the determination of the default judgment application was consistent with the orders listing the default judgment application for a 20 minute hearing.
38	Allcar submitted that the determination of the substantive issues in the proceeding without proper notice or an opportunity to be heard was unfair.  Allcar submitted that it was denied the opportunity to:
(a)	present additional evidence or call witnesses in support of its claims;
(b)	address the learned magistrate’s concerns regarding the credibility and/or sufficiency of the evidence; and
(c)	fully argue the merits of its case at a final hearing.
39	Allcar submitted as follows:
The only way His Honour could have reached a view that the claim was not “established” was if His Honour:
25.1	concluded that the interference by [Mr Cooney] in the relationship between [Allcar] and [the employees] did not continue between the giving of their statements on 11 May 2023 and their respective resignations; or that it could not have had an impact on those men that was not recorded in their witness statements or that any such impact did not manifest subsequent to the giving of those statements; and
25.2	disregarded Mr Atanasov’s belief that the statements made by [Mr Cooney] to [the employees] affected their decision to their positions with [Allcar].
Respectfully, His Honour could not have reached a state of satisfaction with respect to either of those matters without having heard evidence from Messrs James, Rice and Atanasov in the context of a full hearing.  Only in that context could the evidence have been properly assessed. Such hearing was not ordered; the proceeding was dismissed.
Default judgment
40	While this issue was not expressly articulated as a question of law in the amended notice of appeal, Allcar also submitted that the learned magistrate misapprehended the scope of his powers under O 21 of the Rules.
41	In National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd, McPherson J emphasised that the rules relating to default judgments are designed to facilitate the administration of justice by expediting the disposal of cases where there is no real contest.
42	Allcar noted that O 21 provides a mechanism for a plaintiff to obtain default judgment if a defendant fails to file a notice of defence.  The purpose of the rule is to expedite the disposal of cases where the defendant has not engaged with the process.  However, Allcar submitted that the rule does not permit a substantive dismissal of the plaintiff’s claim unless it is clear that the claim is so devoid of merit that it cannot succeed on the pleadings alone.
43	Allcar submitted that the learned magistrate erred by exceeding the scope of his powers under O 21.  Allcar contends that the rule contemplates a decision to either enter judgment in favour of the plaintiff or refuse the application for default judgment and list the matter for trial, but does not permit the summary dismissal of the complaint based on the substantive merits of the case.  If the learned magistrate was not satisfied that default judgment should be entered, Allcar submitted that the appropriate course was to:
(a)	refuse the application for default judgment; and
(b)	set the matter down for further directions or a final hearing.
44	Allcar submitted that the learned magistrate’s actions did not facilitate justice, but rather prematurely terminated the proceedings without due consideration.
Miscarriage of discretion
45	Finally, Allcar submitted that by dismissing the proceeding summarily, the learned magistrate’s discretion miscarried.  The exercise of judicial discretion must be undertaken in accordance with legal principles and within the boundaries set by law.  Allcar contended that the learned magistrate’s decision to dismiss the complaint, without affording Allcar the opportunity to present its case on the merits, constituted a miscarriage of discretion.
46	Allcar referred to the decision of the High Court in House v R, where the plurality said as follows:
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.
47	The High Court in Stead emphasised that the improper exercise of discretion in a manner that denies procedural fairness can result in a decision being set aside.  The Court held that a decision made without affording a party an opportunity to address deficiencies or present further evidence is a denial of procedural fairness.
48	Allcar submitted as follows:
In the premises, there was no basis on which it was proper to bring the proceedings to a conclusion in the absence of a hearing on the merits.  His Honour disregarded the evidence of Mr Atanasov, and failed to consider the effect of the timing of Messrs Rice’s and James’ statements (and did not give the Appellant the opportunity to speak to the weight that should be given to those statements generally).  As a result, in exercising his discretion to dismiss the proceeding entirely, His Honour’s discretion miscarried.
49	Allcar submitted that the learned magistrate’s discretion miscarried by dismissing the complaint without hearing the evidence at trial or allowing Allcar to address the concerns raised about the sufficiency of the evidence.  Allcar submitted that the learned magistrate ought to have refused the application for default judgment and listed the matter for trial, thereby allowing Allcar to present its case fully.
50	At the hearing of the appeal, counsel for Allcar relied upon a decision of the New South Wales Court of Appeal in Moon v Mun, where the Court was confronted with a case not too dissimilar to the current case.  The proceeding in the Local Court arose from the sale and purchase of a food business.  The plaintiff below sued the purchaser for the balance of the purchase price.  The defendant admitted the relevant agreement, and part-payment of the purchase price, and alleged that the plaintiff had breached a number of terms of the agreement.  However, the defendant made no cross-claim in that regard, and did not plead any set-off.
51	When the proceeding came on for trial, counsel for the plaintiff submitted that, given the admissions in the defence, and the absence of any cross-claim or set off, the plaintiff should have judgment based upon the pleading alone.  The magistrate agreed, struck out the defence and gave judgment in favour of the plaintiff.
52	An appeal to the Trial Division was unsuccessful.  However, the Court of Appeal considered that the magistrate was in error in, among other things, granting judgment on admissions in a defence which he had struck out, and striking out the defence without leave to replead in circumstances where:
…the amended defence showed that the appellants denied their liability to pay the sum claimed and set out with sufficient clarity the reasons for that denial.
53	Barrett JA, with whom Basten and Ward JJA agreed, concluded his reasons as follows:
The magistrate did not identify any provision of the rules of court as the basis for his decision to give summary judgment for the respondent, as plaintiff.  Nor was there any statement of reasons beyond reference to deficiencies in the defence and the “failure of the defendants to properly plead their case”, which it was said meant that there was no pleading that the plaintiff was required to answer.
The primary judge was therefore left to speculate.  That was a task that, if undertaken at all, should have been approached with great caution.  In the ordinary course, any judicial act of significance for which the judicial officer gives either no reasons or supposed reasons that in reality contain no explanation should be taken to have been performed irregularly – unless, no doubt, the circumstances of the case are such as to make the reason obvious.  It is generally no part of the function of an appellate court to guess why and on what basis the court below did what it did.
But even the most astute speculation in search of a firm foundation for the magistrate’s orders striking out the defence and for the entry of summary judgment should have been unproductive in this case.  The judgment could not have been upheld as a judgment on admissions once it was recognised that the amended defence had been struck out.  And even if the defence had not been struck out, the conditions necessary to permit principled exercise of the discretion to award judgment on admissions would have been seen not to be satisfied.  Nor, as the primary judge recognised, was there satisfaction of the conditions necessary to permit judgment by default.  As for the striking out of the defence, the position was that, if striking out was warranted at all, it was warranted only in company with a grant of leave to replead.
The order and judgment of the magistrate were simply unsupportable.  There was no basis on which it was proper to bring the proceedings to a conclusion in the absence of a hearing on the merits.  The appellants, as defendants, were given no opportunity to address the alleged deficiencies in their pleading identified for the first time at the start of the hearing.
Discussion
54	Allcar does not, at least for the purposes of this appeal, take issue with the learned magistrate’s decision to refuse to grant default judgment.  What Allcar does take issue with are the following matters:
(a)	the failure of the learned magistrate to provide Allcar with an opportunity to remedy the defects in its proofs, either by adjourning the default judgment application to a later date or by listing the proceeding for an undefended trial; and
(b)	the learned magistrate’s decision to, without warning, and without seeking submissions, summarily dismiss the proceeding in its entirety, in circumstances where, among other things, the learned magistrate had concluded that Allcar had suffered at least some loss and damage by reason of the resignation of the employees, was not a decision that was open to the learned magistrate to make, and his discretion in that regard miscarried.
55	The legal principles concerning the obligation of a decision-maker to afford a person affected by a decision procedural fairness are uncontroversial, and were canvassed in the preceding section of these reasons.  The question as to whether the learned magistrate’s discretion miscarried is a little more complex, by reason of the statutory framework governing the powers of the Magistrates’ Court under the Act and the Rules, read together with the provisions governing the summary dismissal of civil proceedings under the Civil Procedure Act 2010 (Vic) (‘CPA’).
56	Turning first to the question of whether Allcar was denied procedural fairness, this issue can be dealt with quite promptly.  For all practical purposes, Allcar was not provided with an opportunity to be heard on the question of whether its claims in the proceeding should be dismissed.  The transcript reproduced in these reasons shows that the learned magistrate provided a comprehensive explanation of why he was not satisfied that it was appropriate to grant default judgment in favour of Allcar.  No issue can be taken with either his refusal to grant default judgment, or his reasons for doing so.  However, when Allcar’s solicitor attempted to proffer an explanation for why the statements were unsigned, the learned magistrate cut him off, saying there was no way he could be satisfied on the balance of probabilities that the claim could be established, and went on to dismiss the proceeding.  In doing so, the learned magistrate offended the hearing rule, which has been said by the High Court on numerous occasions to be an essential feature of our judicial system.  Accordingly, the learned magistrate’s decision to dismiss the proceeding was tainted by legal error on this ground alone.
57	Turning now to the question of whether the learned magistrate was actually empowered to dismiss the proceeding summarily and the related question of whether, in doing so, the learned magistrate’s exercise of discretion miscarried as noted by counsel for Allcar in his submissions, the learned magistrate did not state why the proceeding was dismissed, or the rule or other statutory provision under which it was dismissed.
58	Unlike this Court, the powers of the Magistrates’ Court are confined to those powers conferred by statute.  The powers of the Magistrates’ Court to control its own procedures were considered by Batt J in Guss v Magistrates’ Court of Victoria, where an applicant sought judicial review of a magistrate’s decision to impose a requirement that the applicant obtain the leave of the court before making any further application to set aside a default judgment, where no such requirement was provided for by the version of the Rules then in force.
59	His Honour referred to the decision of the Full Court in M v M, which was to the effect that all courts, including inferior courts, have control of their own proceedings, and may regulate the conduct of those proceedings in a manner not inconsistent with their governing act or the ‘decent administration of justice’.  Further, the power to control its own procedure cannot be ‘inconsistent with or completely covered by statute’.
60	His Honour also referred to s 136 of the Act (which is still in force), which provides that (emphasis added):
The Court may, except where provided by this or any other Act, at any stage of a proceeding, give any direction for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination.
61	His Honour considered that s 136 superseded the incidental power referred to above, and that the imposition of the leave requirement fell within the power of the court under s 136 of the Act.
62	The relevant question in the current case is, therefore, whether the learned magistrate was empowered under s 136 of the Act, or some other provision of the Rules such as r 21.10(3)(e), to summarily dismiss the proceeding.  In my view, s 136 does not confer a power of summary dismissal.  The power to order that a proceeding be summarily dismissed is governed by another Act, being the CPA, supplemented by Order 22 of the Rules.  Further, I do not consider that r 21.10(3)(e) of the Rules, which provides that, on an application for default judgment, the Court may ‘make any other order it considers appropriate’, conferred a power of summary dismissal upon the learned magistrate.  The general discretion conferred by this sub-rule (and s 136 of the Act) must yield to the specific provisions with respect to the grant of summary judgment under s 63 of the CPA and Order 22 of the Rules.
63	However, the court’s jurisdiction under Order 22 of the Rules is only enlivened where an application for summary judgment is made by a party to the proceeding.  Order 22 of the Rules does not contemplate an order for summary judgment on the court’s own motion, which is, in effect, what happened here.
64	The learned magistrate was, however, empowered to dismiss the proceeding on his own motion under s 63 of the CPA.  Section 63 of the CPA provides as follows (emphasis added):
Summary judgment if no real prospect of success
(1)	Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
(2)	A court may give summary judgment in any civil proceeding under subsection (1)—
(a)	on the application of a plaintiff in a civil proceeding;
(b)	on the application of a defendant in a civil proceeding;
(c)	on the court’s own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.
(emphasis added).
65	Section 64 of the CPA provides as follows:
Court may allow a matter to proceed to trial
Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because—
(a)	it is not in the interests of justice to do so; or
(b)	the dispute is of such a nature that only a full hearing on the merits is appropriate.
66	It is apparent from the language of s 63 that the power granted to a court to summarily dismiss a proceeding under s 63 of the CPA is discretionary in nature.  However, the discretion is not at large.  The discretion is conditioned by the requirement in s 63 that the court be ‘satisfied’ of certain matters, and by the principles laid down by the authorities, principal among them the test laid down by the Court of Appeal in Lysaght Building Solutions v Blanalko Pty Ltd, (‘Lysaght’) where the Court stated as follows:
Upon the present state of authority:
(a)	the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a “real” as opposed to a “fanciful” chance of success;
(b)	the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
(c)	it should be understood, however, that the test is to some degree a more liberal test than the “hopeless” or “bound to fail” test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
d)	at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.
67	Accordingly, in order for the learned magistrate’s discretion to dismiss the proceeding summarily to be enlivened, his Honour would have had to reach a state of satisfaction that:
(a)	Allcar’s claims in the proceeding had no real prospects of success, in accordance with the test laid down by the Court of Appeal in Lysaght; and
(b)	that it was desirable to dismiss the proceeding.
68	Given that s 109 of the Act limits an appeal to a question of law, any conclusion by the learned magistrate that Allcar’s claim in the proceeding had no real prospects of success could only be overturned on the basis of legal error.  That is, this Court would need to be satisfied that the learned magistrate had, among other things, breached his obligation to afford procedural fairness, or had failed to take into relevant considerations, or had taken into account irrelevant considerations, or had reached a conclusion that was not open to him to reach on the evidence.
69	Further, while s 63(2)(c) of the CPA refers to the need for the court to be ‘satisfied’ that it was desirable to dismiss the proceeding, the inclusion of the word ‘desirable’ in that sub-section indicates that the power conferred by s 63(2)(c) is discretionary in nature.
70	Accordingly, in exercising the discretion to summarily dismiss the proceeding, the learned magistrate’s determination would be infected by legal error if it is established that he acted upon a wrong principle, allowed extraneous or irrelevant matters to guide him, that he mistook the facts, or failed to take into account a material consideration, or if the result was unreasonable or plainly unjust.  Further, the authorities make it clear that a failure to afford procedural fairness amounts to an error of law capable of invalidating the exercise of a discretion.
71	In my view, it was not open to the learned magistrate to be satisfied that Allcar’s claims in the proceeding had no real prospects of success, even on the basis of the rather inadequate evidence before him for the purposes of the default judgment application.  Further, prior to reaching the requisite degree of satisfaction, and prior to exercising the discretion to dismiss the proceeding summarily, the learned magistrate was obliged to provide Allcar with an opportunity to be heard on that question, which he did not provide.  Accordingly, the discretion conferred by s 63 of the CPA was not enlivened, but even if it was, the exercise of discretion miscarried.
72	I agree with the learned magistrate that the evidence filed in support of the application was less than impressive.  In particular, apart from Mr Atanasov’s statement of his belief that the employees left their employment by reason of the overtures of Mr Cooney, one could not conclude that was the case based on the ‘evidence’ in the statements, which pre-dated their resignations by some months and, indeed, evidenced some positive resistance by the employees to those overtures.  And, while I have not undertaken the detailed analysis of the information in the spreadsheet carried out by the learned magistrate prior to the hearing, I am prepared to assume, for present purposes, that his Honour’s analysis of the quantum of Allcar’s claim was correct.
73	However, the faults in the evidence relied upon by Allcar were not only relied upon by the learned magistrate to justify rejecting the default judgment application, a decision which was, on its face, completely justifiable, but also to conclude that those defects meant that Allcar’s claims in the proceeding had no real prospects of success.
74	The transcript of the hearing does not disclose whether the learned magistrate had turned his mind to the test for summary judgment under s 63 of the CPA.  The learned magistrate did not say that he had dismissed the proceeding on the basis that the claims in the proceeding had no real prospects of success.  However, reaching such a conclusion was a pre-condition of the exercise of his power to do so.  If he had not reached such a conclusion, the discretion to dismiss the proceeding was not enlivened.  If he had reached that conclusion, it was not, on the evidence, open for him to do so.  Either way, the learned magistrate erred in law.  For completeness, the learned magistrate also failed to consider whether the proceeding should be permitted to proceed to trial pursuant to s 64 of the CPA.
75	Setting aside for the moment the question of whether the learned magistrate failed to afford Allcar procedural fairness when reaching his conclusion that Allcar’s claims in the proceeding had no real prospects of success, in my view, it was not open for the learned magistrate to reach that conclusion, notwithstanding the deficiencies in the evidence before him.  While Mr Atanasov’s affidavit did not give evidence about the terms of the employment agreement, or exhibit any document evidencing the terms of the employment agreement, that did not seem to be a particular concern of the learned magistrate, and presumably further evidence regarding the terms of the employment agreement was available and could be produced.
76	Further, while the learned magistrate did take issue with the fact that the statements were unsigned, it was permissible for Allcar to rely upon evidence of a hearsay nature, given that the default judgment application was an interlocutory application.  If that evidence was to be accepted, then Mr Cooney clearly engaged in conduct that was in breach of the restraint provisions of the employment agreement, by attempting to persuade (quite persistently) the employees to resign from Allcar and sign up with another employer.
77	I accept that there was a real deficiency in the evidence regarding the causation issue, in that, apart from Mr Atanasov’s statement as to his belief as to the reasons why the employees left Allcar, there was no evidence that the employees left their employ because of the solicitations of Mr Cooney.  However, while the absence of this evidence was, quite reasonably, fatal to the application for default judgment, it was a big leap to conclude that the deficiencies in the evidence were incapable of being cured by further evidence, or that further evidence regarding the causation issue would not be available, either at a further interlocutory hearing, or at a trial.  The employees may have been unco-operative after departing their employment, but they would be capable of being compelled to come to court by a subpoena.  To reach a conclusion that there would be no real prospects of Allcar being able to establish that Mr Cooney’s solicitations caused the employees to leave their employment was a bold call to make in the circumstances.
78	In any event, even if Allcar was not able to adduce evidence from the employees that their departures from Allcar were caused by or connected with Mr Cooney’s overtures to them, it must be remembered that Allcar’s claims in the proceeding included a claim for injunctive relief.  Based upon the terms of the employment agreement and the evidence of the employees (assuming for present purposes that evidence in a satisfactory form could be adduced by Allcar), there was a sound evidentiary foundation for Allcar’s claim that Mr Cooney had breached the terms of the employment agreement by actively seeking to persuade the employees to leave Allcar and join another employer.
79	Accordingly, that Mr Cooney’s solicitations did not, of themselves, persuade the employees to resign from their employment is somewhat beside the point, at least for the purpose of Allcar’s claim for injunctive relief.
80	It is settled law that injunctive relief is available to restrain a breach or threatened breach of a negative contractual stipulation, such as an obligation to not disclose or otherwise misuse confidential information, on a valid restraint of trade clause.  The remedy is discretionary, and there may have been good reasons for refusing to grant Allcar injunctive relief, such as the delay between the relevant conduct and Allcar pursuing its claims in the proceeding.  However, the learned magistrate did not appear to have even turned his mind to the question of whether Allcar was or might be entitled to injunctive relief: his Honour’s focus was limited to the causation issue and Allcar’s claim for loss and damage.
81	Accordingly, even if it was open to the learned magistrate to find that Allcar’s damages claim had no real prospects of success by reason of the causation issue (which I doubt it was), it was certainly not open to the learned magistrate to conclude that Allcar’s claim for injunctive relief had no real prospects of success.  There was evidence that Mr Cooney had breached the terms of the employment agreement, on a persistent and repetitive basis.  Even if the learned magistrate was not persuaded that Mr Cooney influenced the decision of the employees to resign, there was evidence that Allcar had other employees who could also potentially be the subject of Mr Cooney’s attentions should he not be restrained from breaching terms of the employment agreement again.  Further, while the learned magistrate did not accept Mr Atanasov’s calculations of loss and damage, it is apparent from his Honour’s reasons that he accepted that Allcar would suffer at least some material loss and damage should an employee leave its employ.  Finally, at the time of the hearing, the one year restraint period in the employment agreement had not yet expired, such that the grant of injunctive relief would have had some utility.
82	Accordingly, for all of the reasons outlined above, it was not open to the learned magistrate to conclude that Allcar’s claims in the proceeding had no real prospects of success.  Accordingly, the question of whether it was desirable to dismiss the proceeding did not really arise.  However, if it did, the only basis for concluding that it was desirable to dismiss the proceeding at that time was the deficiencies in Allcar’s proofs.  While I accept that those deficiencies were real, it seems to me to be both unreasonable and a denial of procedural fairness to refuse to provide Allcar with an opportunity to rectify those deficiencies.
83	This was not a situation where Allcar had made repeated unsuccessful attempts to verify its claims, thus unduly wasting court time.  Mr Cooney was not being prejudiced by Allcar’s conduct: he had washed his hands of the process.  Further, Allcar was understandably completely blindsided by the learned magistrate’s decision to dismiss the proceeding after what was scheduled to be a 20 minute hearing for an application for default judgment.  Regardless of whether the learned magistrate’s conduct could have been characterised as unreasonable or as a breach of procedural fairness, and setting aside the fact that his discretion to dismiss the proceeding under s 63 of the CPA was not enlivened, the outcome was plainly unjust.  For all of the above reasons, the exercise of discretion miscarried, and the appeal should be allowed on this ground as well.

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