Review for mistake of fact upheld where prior publication of sales tax rule emerged after the earlier order.

A review is maintainable where a material fact was not before the HC because it was accepted under a mistake of fact, and that fact later emerges as essential to the earlier decision. The Court found that the sales tax rule had in fact been previously published, contrary to the earlier concession by the State representative. As the real fact of previous publication was not before the Court when the earlier order was made, the review provision was attracted. The earlier order was recalled, the tax revision was dismissed, and costs were awarded to the assessee.

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Issues: Whether the existence of previous publication of the sales tax rule, discovered after the earlier decision, constituted a new fact warranting review under the review provision.

Analysis: The earlier decision proceeded on the footing accepted by the State representative that the rule had not been previously published. On the present application, the record showed that previous publication had in fact taken place and that the earlier concession was made under a mistake of fact. The real fact of previous publication was therefore not before the Court when the earlier order was made, bringing the case within the scope of the review provision.

Conclusion: The review was maintainable and the application was allowed.

Final Conclusion: The earlier order was recalled, the tax revision was dismissed, and costs were awarded to the assessee.

Ratio Decidendi: A review lies where a material fact was not before the Court because of a mistake and is later shown to have existed, and that fact was essential to the earlier decision.

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