Bird v Fesl [2012] QCATA 13

CITATION: Bird v Fesl [2012] QCATA 13 PARTIES: Jacqueline Rose Bird (Applicant/Appellant) v Eve Mumewa Doreen Fesl (Respondent) APPLICATION NUMBER: APL099-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Dr J R Forbes, Member DELIVERED ON: 23 January 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. The order made on 28 February 2011 is set aside and in lieu thereof, the minor debt claim initiated on 2 December 2010 is dismissed. CATCHWORDS: Application for leave to appeal – minor civil claim (minor debt) – whether finding contrary to evidence – whether finding as to credit precludes appeal Queensland Civil and Administrative Tribunal Act 2009, ss 142(3)(a)(i), 147 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Drew v. Bundaberg Regional Council [2011] QCA 359 Fox v Percy (2003) 214 CLR 118 Robinson v Corr [2011] QCATA 302 Ahmedi v Ahmedi (1991) 23 NSWLR 288 Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 Pollard v R R R Corporation Pty Ltd [2009] NSWCA 110 State Rail Authority of NSW v Earthline -- 1 of 7 -- 2 Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 Sangha v Baxter (2009) 52 MVR 492 Shimokawa v Lewis [2009] NSWCA 266 Sir Harry Gibbs “Judgment Writing” (1993) 67 ALJ 494 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] In the form of a Minor Civil Dispute, the Applicant Jacqueline Rose Bird (“Bird”) sued Eve Mumewa Doreen Fesl “for Ganggala Pty Ltd” [sic] for $2,430 for services rendered. Commendably, there was no technical contest about the precise identity of the Respondent. [2] Bird worked intermittently for the Respondent, from early September 2009 until February 2010, as a “cultural heritage monitor” on a native title claim. Fesl was an “Aboriginal party” to the claim within the meaning of section 35 of the Aboriginal Cultural Heritage Act 2003, and responsible for the security of cultural heritage items in the claim area. According to Fesl, she sub-contracted “monitoring” work, on a casual basis, to Bird and others “who are unskilled and do not have permanent employment, [as] I thought I was doing them a good turn”. [3] There are two aspects to Bird‟s claim. She alleges: (a) That Fesl paid her $405 per day (or $202.50 per half day) instead of $450 and $225 respectively, according to the terms of her engagement; and (b) That on six occasions, Fesl paid her for a half-day when in fact she worked, and was entitled to be paid for a full day. [4] Fesl denies each of these allegations. With respect to “(a)”, it seems that, while the “going rate” was usually $450 per day, Bird agreed, in effect, to pay a levy of $45 per day to defray legal expenses incurred by the claimant group, because “without a successful native title claim we could not have [given Bird and others] the work”.1 [5] With respect to “(b)”, Fesl says that accurate records of time worked were kept, and that, contrary to Bird‟s claim, those records show that Bird was “paid all contracted fees due to her”.2 1 Transcript page 11. 2 Transcript page 14. It does not appear that the records themselves were put into evidence. -- 2 of 7 -- 3 [6] It is curious that, while $1,350 was claimed for time worked but not paid for – about 55% of the total claim – very little attention was paid to that aspect of the dispute before the Tribunal, and in the event, the learned Member made no decision about it, merely awarding Bird “$945 for incorrectly taking legal fees” and costs of $92 – $1037 in all. [7] Bird has not cross-appealed, so the proceedings are reduced to an application by Fesl for leave to appeal against the order to pay Bird the sum of $1,037 forthwith. Leave to Appeal? [8] In a case of this kind, in the interests of economy and finality, there is no appeal as of right.3 The applicant for leave must show that the decision in question is affected, arguably at least, by an appealable error, resulting in a substantial injustice.4 It is not such an error to prefer one version of the facts to another, or to attribute more weight to the evidence of witness “A” than to the testimony of witness “B”. Findings of fact will not usually be disturbed on appeal if the findings of fact by the original decision maker have rational, albeit debateable support in the evidence.5 Leave is not to be given where a party simply desires to re-argue the case, on existing or additional evidence. One clear purpose of a “leave” requirement is to preclude any attempt to conduct a retrial on the merits.6 It is not nearly enough to express disappointment at the original decision, or a subjective feeling that justice has not been done.7 [9] For the reason already given, it is only necessary to consider the decision to award Bird “$945 for [Fesl‟s] incorrectly taking legal fees”. Fesl insists that what I may call a “legal fees levy” of $45 was agreed to by Bird, and it is undisputed that she has in fact been paid $405 per day. Bird contends that she is entitled to $450 per day, but as will be seen below, her evidence is by no means clear and consistent on that point. [10] The learned Member‟s reasons for preferring the evidence of Bird were briefly stated, as an afterthought, following his order that Fesl pay Bird the sum of $1037: “I should say the reason I have accepted the evidence of [Bird] in relation to the aspect of legal fees is that I prefer to accept that evidence than [sic] the evidence of [Fesl]. I found the evidence of [Bird] to be persuasive in respect of that aspect and I‟ve also taken the view, as I mention in these reasons, that it does seem to be an inappropriate procedure to expect ... employees or sub-contractors to pay legal fees.” 3 Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) s 142(3)(a)(i). 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Drew v. Bundaberg Regional Council [2011] QCA 359 at [19] 5 Fox v Percy (2003) 214 CLR 118 at 125-126. 6 Contrast QCAT Act, s 20 (review jurisdiction). 7 Robinson v Corr [2011] QCATA 302 at [7]. -- 3 of 7 -- 4 [11] It may be inferred that the learned Member found Bird less persuasive when she complained of being paid for half-days instead of full days; as already noted, he made no award in that respect. [12] In defence of the primary decision it may be said that it turns on credit and that an appeal tribunal should not disturb such a decision by the person who saw and heard the witnesses. But the consideration of this case should not end there. Decisions based on credit are not so reverently accepted as in times past. Courts of high authority now say that it is insufficient to state baldly that “A‟s” version is preferred to “B‟s”, even if the choice is supported by adjectives such as “impressive”. “If a finding of fact depends on an issue of credibility the judge should resolve that issue and in fairness to the parties should reveal why he prefers one witness to another.”8 “Ritual incantation of the inviolability of credit findings is no longer an almost insuperable barrier to appellants.9 If [that] mere incantation ... is henceforth to deprive this court of the power and duty of review of factual conclusions, a great deal of injustice will be uncorrected.”10 “It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other. ... That is not the way in which our legal system operates ... It is only when adequate reasons of this kind are given that an unsuccessful party will be able to understand why the judge has believed his or her successful opponent.”11 "Bald conclusionary statements should be eschewed", and "... where credit issues are involved it is necessary to explain why one witness's evidence is preferred to another's".12 [13] If other evidence13 clearly shows that the primary decision is erroneous it may be set aside, although it is based, wholly or partly, on assessment of credit.14 In CSR Ltd v Della Maddalena15 Kirby J (Gleeson CJ concurring) observed that Fox v Percy “involved a shift to some degree from the more extreme judicial statements commanding deference to the findings of primary judges said to be based on credibility assessments”, and added: “It would be a misfortune for legal doctrine if, so soon after Fox v Percy corrected the ... excesses of earlier appellate deference to erroneous fact- finding by primary judges, the old approach was restored ... by reversion 8 Sir Harry Gibbs “Judgment Writing” (1993) 67 ALJ 494 at 497. 9 Fox v Percy (2003) 214 CLR 118 at [29]. 10 Ahmedi v Ahmedi (1991) 23 NSWLR 288 at 291 per Kirby P. 11 Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186, per Ipp JA at [28]-[29]. 12 Pollard v R R R Corporation Pty Ltd [2009] NSWCA 110 at [64] - [65] per McColl JA. 13 State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 at [63]. 14 Ibid; Sangha v Baxter (2009) 52 MVR 492; Shimokawa v Lewis [2009] NSWCA 266 at [181]-[182]. 15 (2006) 80 ALJR 458 at 465. -- 4 of 7 -- 5 to the previous formulae about the „subtle influence of demeanour‟ that could have affected the primary judge‟s conclusion.” [14] Adequacy of credit findings aside, and whatever one may think of “appropriateness” of the arrangements alleged by Fesl, there is substantial evidence16 tending to support her contention that the agreement was for $450 per day, less 10% for legal fees in connection with the native title claim which gave Bird and others the opportunity to earn fees for “cultural heritage” activities. [15] First, the evidence of Bird herself: “PRESIDING MEMBER: Mrs Bird, for your part, was there any agreement between you and [Fesl] as to the paying of legal fees? MS BIRD: A verbal agreement was made until I found out that it was illegal for Dr Fesl to do that. ... PRESIDING MEMBER: So you‟re saying she should not have deducted monies for legal fees? Even though you say there was an agreement that that be the case? MS BIRD: There was a verbal agreement, yes, that‟s correct, but I was going into that agreement blinded because I didn‟t know that it was illegal for Dr Fesl to do that.”17 [16] The vague and unsubstantiated suggestion of illegality, by way of confession and avoidance, was taken no further. Bird did not say whether she “found out it was illegal” before or after her last day‟s work for Fesl. There is no evidence of Bird‟s objecting to the terms offered at the time the agreement was made. Neither Bird nor anyone else specified a law that might have been infringed, and the learned Member expressed no opinion, and made no finding on that point. On his initiative the focus shifted from the vaguely “illegal” to terms that were “inappropriate”: “PRESIDING MEMBER: Whether it‟s illegal or not, the point you‟re making is that anybody who contracts for a lawyer to do work for them, they should be the person who pays the money, is that the point? MS BIRD: I believe that‟s what I was – PRESIDING MEMBER: Well, that normally follows, doesn‟t it? If you see a lawyer and pay them for their services, you‟re the client and normally the client pays the money. MS BIRD: Exactly.”18 16 I use this term in the non-technical sense appropriate to tribunals not bound by the rules of evidence as applied in courts. 17 Transcript page 10 18 Transcript page 10 -- 5 of 7 -- 6 [17] However, the issue was whether the agreement, as alleged by Fesl, was in fact made (and if so, its terms) not whether it was “appropriate”, “normal”, generous or niggardly. ($405 per day is hardly an insubstantial fee for unskilled “monitors” of cultural heritage.) [18] Bird‟s admission does not stand alone. In response to a question by the Presiding Member, Bird produced a “receipt book”, acknowledged as her property.19 (“That‟s what we were asked to purchase”.20) There was some inconclusive evidence about the authorship of two “receipts”, each party disowning the handwriting, but it seems a reasonable and probable inference that most of the entries in the book were made by its admitted owner, Bird. The Presiding Member read extracts as follows: “Field research December ‟09 at Dakabin – $450-$45, net $405 15.12.09 field research at Yandina Creek for sub-divisions Queensland $450-10% lawyers $45 ... 25.3.10 less 10% Ganggala legal fees $45 ...”. [19] But remarkably, Bird was not questioned closely, or at all, about those entries in her notebook, and the inter-party dialogue that constituted much of the oral evidence moved on to other concerns. [20] Bird produced affidavits of fellow workers, Patrick North Bird and Lorelle Underhill. Also in evidence is a statement by H Baeder. [21] According to Patrick Bird, father of Jacqueline Bird: “Ms Fesl told us we would be paid $450 per day and that a deduction of 10% will take back out of each individual‟s pay per week to pay for her solicitors‟ fees.” Mr Bird does not suggest that there was any argument about, or rejection of Fesl‟s offer by himself, or others present, namely Jacqueline Bird, Lorelle Underhill, and Shayne Underhill. [22] Lorelle Underhill, sister of the claimant, swore two affidavits on 28 February 2011, the date of the hearing. In one of them she asserts that “we were entitle [sic] for a full day‟s wage of $450 a day. Eve Fesl ... had taken out 10% for legal fees”. However, in the other, Underhill states: “During the month of November 2009, I attended an induction with Jacqueline Bird and Shayne Underhill, at the residence of Eve Fesl to work for her company Ganggala Pty Ltd as a cultural heritage monitor. Eve Fesl told us that 10% would be deducted from our wages to cover the cost of an unsuccessful native title claim, for the amount of $33,000. During the time of working for Gangalla Pty Ltd Eve Fesl deducted 10% out of all cultural heritage monitors‟ wages for her legal fees”. [23] Lorelle Underhill, in common with Patrick Bird, makes no suggestion that she or others present disputed or rejected Fesl‟s offer. 19 Transcript pages 6-7. 20 Transcript page 8. -- 6 of 7 -- 7 [24] Baeder was present when Jacqueline Bird and her sister were offered “$405 per day when work was available ... Mrs Bird, along with those others present and myself, were happy to accept this. $405 per day for people without skills is to me, very good money ...” [25] The evidence adverse to Bird‟s case is of such weight that a summary acceptance of her credit cannot reasonably dispose of it, or enable her to discharge her burden of proof. This conclusion implies no disrespect to the learned Member; he and his colleagues deal with minor debt claims without legal assistance, often with little assistance from the parties, and under severe pressures of time; the present case was heard and decided in less than one hour. It is not a jurisdiction in which time to consider at length or at leisure is available. [26] Leave to appeal is granted, and the appeal is upheld. ORDERS [1] Leave to appeal is granted. [2] The order made on 28 February 2011 is set aside, and in lieu thereof, the minor debt claim initiated on 2 December 2010 is dismissed. -- 7 of 7 --