Ardela Holdings Pty Ltd v Hateley [No 2] - [2016] WASCA 141

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ARDELA HOLDINGS PTY LTD -v- HATELEY [No 2] [2016] WASCA 141

CORAM: MARTIN CJ
MURPHY JA
MITCHELL JA

HEARD: 18 JULY 2016

DELIVERED : 8 AUGUST 2016

FILE NO/S: CACV 105 of 2014

BETWEEN: ARDELA HOLDINGS PTY LTD
First Appellant
JUNE ELEANOR BROWN
Second Appellant
AND
LAURENCE HATELEY
SUSAN THOMSON
First Respondents
GUNNADOO CORPORATION PTY LTD
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :WISBEY AUDCJ
Citation  :HATELEY -v- ARDELA HOLDINGS PTY LTD [2014] WADC 103
File No  :CIV 3170 of 2011

Catchwords:

Evidence - Alleged removal of money by employee of business from till - Alleged admission - Whether finding was open on the totality of evidence before trial judge - Briginshaw standard - Whether trial judge's inference was wrong in fact

Practice and procedure - Application by respondent, shortly prior to hearing of appeal, to adjourn the appeal, to extend time for payment of security for costs of cross-appeal and for an order that the matter be sent to mediation - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed
Respondents' interlocutory application for adjournment and other orders dismissed

Category: B

Representation:

Counsel:

First Appellant              :     Ms N Breach
Second Appellant          :     Ms N Breach
First Respondents         :     In person
Second Respondent       :     No appearance

Solicitors:

First Appellant              :     JNC Legal
Second Appellant          :     JNC Legal
First Respondents         :     In person
Second Respondent       :     No appearance

Case(s) referred to in judgment(s):

Ardela Holdings Pty Ltd v Hateley [2016] WASCA 65
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Hateley v Ardela Holdings Pty Ltd [2014] WADC 103
Leeder v The State of Western Australia [2008] WASCA 192
McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8
Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588
REASONS OF THE COURT:

Introduction

This is an appeal by the first appellant, Ardela Holdings Pty Ltd (Ardela), and the second appellant (Ms Brown) against a decision of Wisbey AUDCJ in Hateley v Ardela Holdings Pty Ltd[1] (primary reasons).
[1] Hateley v Ardela Holdings Pty Ltd [2014] WADC 103.
In broad terms, the primary proceedings involved a dispute as a result of the purchase by the second respondent, Gunnadoo Corporation Pty Ltd (Gunnadoo), of a newsagency business from Ardela in 2010. In relation to the sale and purchase of the business, Gunnadoo acted through the first respondents, Mr Hateley and Ms Thomson, and Ardela acted through Ms Brown.
Settlement of the sale of the business to Gunnadoo occurred on 9 August 2010.[2] It was not in dispute that Ms Brown worked in the business for Gunnadoo following settlement from late August 2010 ‑ February 2011.[3]
[2] Primary reasons [4].
[3] Further amended statement of claim, par 37; amended defence of the first and second defendants, par 35.3; BB 59, 80.
In general terms, Gunnadoo (with Mr Hateley and Ms Thomson) sued Ardela and Ms Brown for alleged misleading or deceptive conduct in relation to the sale of the newsagency and for certain alleged breaches of contract. In addition, Gunnadoo claimed that Ms Brown, in the period in which she worked in the business after its purchase by Gunnadoo, had taken money from the till.
The primary judge dismissed the claims in relation to misleading or deceptive conduct and for breach of contract. His Honour found, however, that Ms Brown had taken money from the till and was liable in the sum of $1,290 for conversion. He ordered judgment in that regard, plus interest, giving a total judgment sum in favour of Gunnadoo of $1,558. His Honour also ordered, in effect, that Gunnadoo, Mr Hateley and Ms Thomson (the plaintiffs) pay 75% of the costs of Ardela and Ms Brown (the defendants).
Ardela and Ms Brown have appealed the primary judge's decision in relation to the judgment for conversion, and in relation to the decision as to costs. In relation to the costs decision, they claim, in effect, that as (so they contend) the claim in conversion should have been dismissed, they

are entitled to an award of 100% of their costs and not just 75% of the costs of the action.

Gunnadoo, Mr Hateley and Ms Thomson cross-appealed the decision in relation to the dismissal of their claims for misleading or deceptive conduct and breach of contract. On 11 April 2016, they were ordered to give security for costs of the cross‑appeal by 9 May 2016 and it was ordered that (subject to liberty to apply), if security were not provided within that time, the cross‑appeal be dismissed. Security was not provided and the cross‑appeal stands dismissed. There was an application by the respondents, which we heard prior to the commencement of the hearing of the appeal, to adjourn the appeal, to extend the time for payment of security and for the appeal and cross‑appeal to be referred to mediation. That application was dismissed for the reasons set out in [59] ‑ [62] below.
Accordingly, the principal issue in the appeal was the judge's finding that Ms Brown was liable for taking money from the till in the sum of $1,290.
For the reasons which follow, the appeal should be dismissed.

The primary judge's findings

The judge made the following findings on the question of the alleged taking of the money:
(a)on Saturday, 26 February 2011, Mr Hateley had spoken to Ms Brown about an alleged till discrepancy;[4]
[4] Primary reasons [192].
(b)as a consequence of this discussion, Mr Hateley directed Ms Brown not to commence her shift on 26 February 2011;[5]
(c)it would have been clear to Ms Brown from that discussion that her engagement by Gunnadoo was being terminated;[6]
(d)Ms Brown subsequently entered the newsagency outside business hours and without Gunnadoo's authorisation and removed till rolls;[7]
(e)the judge rejected Ms Brown's evidence that she only took the till rolls to examine them with a view to defending herself from unjust accusations;[8]
(f)Ms Brown's conduct in removing the till rolls without authorisation was consistent only with her concern about there being discrepancies in the till rolls;[9]
(g)the judge accepted the evidence of Mr Hateley and Ms Thomson to the effect that Ms Brown had indicated to them on the night of Sunday, 27 February 2011, when she attended their home at about 9.00 pm that she had taken money from the till on Thursday, 24 February 2011;[10]
(h)Ms Van Mil conducted a till audit after 26 February 2011, in which she found a number of unusual discrepancies concerning credits for alleged return of stock;[11]
(i)in respect of most cases identified by the audit, it would be quite unusual for a return of stock to be effected;[12]
(j)the discrepancies coincided with Ms Brown's work roster;[13] and
(k)the audit conducted by Ms Van Mil showed that a sum of $1,290 was taken from the business as a result of alleged returns.[14]
[5] Primary reasons [192].
[6] Primary reasons [192].
[7] Primary reasons [192].
[8] Primary reasons [193].
[9] Primary reasons [193].
[10] Primary reasons [193], read with [48], [86], [92].
[11] Primary reasons [192].
[12] Primary reasons [192].
[13] Primary reasons [192].
[14] Primary reasons [193]; see also GB 264 ‑ 269 in respect of till rolls 2, 3, 5, 6, 8, 10, 12, 16 ‑ 20.
In relation to the occasion of her attendance at the newsagency following the meeting on Saturday, 26 February 2011, the judge found that Ms Brown agreed that she had sent a text to Ms Thomson on 27 February 2011 which read, relevantly:[15]
I went to shop. I bought Reece an iPod Touch and it was in my bag yesterday. It is his birthday tomorrow. It was his present. I found it just under the desk where my bag was. I reset the alarm and was in and out. I did try your home phone to let you know. Sorry for any hassle. Also just tried your mobile. I did not have my phone earlier.
[15] Primary reasons [136].
Ms Brown's text made no mention of the removal of the till rolls on that occasion.

The grounds of appeal

The appellants' grounds of appeal are to the following effect:
(1)The judge erred in law in finding Ms Brown liable in conversion in that, at common law, moneys as currency cannot be the subject of an action in conversion.
(2)The judge also erred in law in the finding of conversion in that:
(a)there was no evidence of any deficiency between the amount of money held by Gunnadoo prior to the alleged conversion and the money held by Gunnadoo after the date of the alleged conversion;
(b)there was no evidence that any money belonging to Gunnadoo had been taken or converted by anyone.
(3)The judge erred in law in that he denied procedural fairness to the appellants in that:
(a)the cause of action for conversion did not fall within the writ of summons (as amended) filed 10 February 2012;
(b)no clear notice was given by the judge or the plaintiffs of an intention to deal with a cause of action in conversion;
(c)there was no indication in Gunnadoo's written submissions of an intention to rely upon a cause of action in conversion;
(d)the written statements filed pursuant to Principal Registrar Gething's order dated 23 July 2012 by Gunnadoo did not provide any evidence as to any deficiency in Gunnadoo's money;
(e)Ardela and Ms Brown, in their submissions to the primary judge, indicated that the claim was not being defended on the basis of a claim in conversion.
(4)The judge erred in law and in fact in finding that Ms Brown had admitted taking money from Gunnadoo in that:
(a)the only evidence in support of such a finding was a 'bald statement made in evidence adduced by [Gunnadoo] as to an alleged admission by [Ms Brown] made 27 February 2011 that she had taken $150';
(b)Ms Brown denied making the admission;
(c)Gunnadoo's counsel did not cross‑examine Ms Brown concerning the alleged admission;
(d)even if there were satisfactory evidence of an admission by Ms Brown, the evidence had no weight when there was no evidence as to a deficiency in Gunnadoo's money on the day of the alleged theft.
(5)The judge erred in law in inferring that Ms Brown took money from Gunnadoo in the sum of $1,290, or any sum, when there was no evidence of a deficiency in Gunnadoo's property.
(6)The judge erred in fact in finding that the alleged misuse of cash register tills was carried out by Ms Brown when that finding was against the weight of the evidence.
(7)The judge erred in law in inferring that Ms Brown's conduct on 26 February 2011 in removing a box of till rolls from the shop was consistent only with her being concerned about discrepancies in the till rolls when:
(a)the uncontroverted evidence was that the till rolls had been returned by Ms Brown by 27 February 2011; and
(b)the returned till rolls contained the entries relied upon by Gunnadoo to allege misuse of the tills by Ms Brown.
(8)The judge erred in law in failing to apply the standard of proof required by the application of the principles in Briginshaw v Briginshaw[16] in determining the action in conversion against Ms Brown.
(9)The judge erred in fact and in law in applying a 25% reduction to the costs recoverable by Ardela and Ms Brown from the respondents when Ardela was entirely successful in defending the claims made against it and the discount to Ms Brown's costs was attributable to the (alleged) erroneous finding in conversion.
[16] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

Gunnadoo's claims in relation to the alleged taking of the money

It is convenient to record at the outset the claims made by Gunnadoo at trial against Ms Brown in relation to the alleged defalcation.
Gunnadoo's writ included a claim for a 'full accounting, disgorging and damages' against Ardela and/or Ms Brown for 'moneys received' by Ms Brown 'from customers on behalf of' Gunnadoo while Ms Brown worked at Gunnadoo's business premises from 9 August 2010 ‑ 26 February 2011.[17]
[17] Minute of amended writ of summons, par (3); BB 46.
In its further amended statement of claim, Gunnadoo alleged, inter alia, that in the period 9 August 2010 - 26 February 2011, Ms Brown stole or misappropriated money from the business.[18] Gunnadoo also pleaded that:
(a)in 'furtherance of these acts of theft' Ms Brown unlawfully entered the business premises on several occasions, the last being 26 February 2011, and 'altered and/or stole used till rolls';[19] and
(b)Ms Brown subsequently induced her son and another employee, Ms Millard, to enter the business premises and remove till rolls without Gunnadoo's authority.[20]
[18] Further amended statement of claim, pars 37 ‑ 39, 43; BB 59 ‑ 60.
[19] Further amended statement of claim, par 40; BB 60.
[20] Further amended statement of claim, par 41; BB 60.
In the amended defence filed on behalf of Ardela and Ms Brown, the alleged misappropriations were denied.
In written opening submissions before the trial,[21] Gunnadoo contended, in effect, that Ms Brown stole money as a servant, for which she was summarily dismissed, and that she had misappropriated daily till rolls.
[21] Plaintiffs' opening submissions, par 3(vi) ‑ (vii), 5F; BB 87, 95.
In written opening submissions filed on behalf of Ardela and Ms Brown, counsel observed, relevantly, that in relation to the allegations of theft, Gunnadoo appeared to be seeking restitution and that this would be the basis on which the claim was contested.[22] The allegations of criminal conduct were denied in Ms Brown's written opening submissions, and counsel also submitted that the Briginshaw principle should be applied to the claims alleging criminal conduct.[23] It was not contended in the written opening submissions on behalf of Ms Brown that the claims for the alleged theft fell outside the general indorsement of the writ.
[22] Defendants' outline of opening submissions, pars 14.3, 15, 16.3; BB 124 ‑ 125.
[23] Defendants' outline of opening submissions, pars 57 ‑ 66; BB 130 ‑ 131.
Gunnadoo's counsel referred to the claims for the alleged theft in oral opening submissions at the trial.[24] In the course of the opening in this regard, the following exchange occurred:[25]
WISBEY ADCJ: So damages for theft is, in fact, your alleged - well, I don't know that it is alleged, but that would be a conversion, wouldn't it? Theft would be a conversion.
[Counsel for Gunnadoo]: Yes. Of [Gunnadoo's] …
WISBEY ADCJ: Moneys.
[Counsel for Gunnadoo]: Yes.
WISBEY ADCJ: And in the papers for the judge one generally does not put in the endorsement of claim but, in fact, in this case there is the amended endorsement and the claim in conversion doesn't seem to arise out of that endorsement, does it?
[Counsel for Gunnadoo]: Well, no.
WISBEY ADCJ: Anyway, I just bring that to your attention. You can worry about that in the fullness of time.
[24] ts 9, 14.
[25] ts 14.
In her oral opening submissions, counsel for Ms Brown referred to the claim that Ms Brown had allegedly stolen money. The following exchange occurred:[26]
WISBEY ADCJ: It's not pleaded in conversion.
[Counsel for Ms Brown]: No. So there's some difficulty as - where [Gunnadoo] gets to with that, even if your Honour is convinced in relation to the allegations. Now, in that respect, the standard of proof is, of course, the civil standard but your Honour needs to be persuaded to a greater degree before the civil standard can be considered, and I'm referring to the Briginshaw principles.
[26] ts 350.
In written closing submissions, counsel for Gunnadoo submitted that the claims of alleged theft were not claims for the tort of conversion, but rather claims in the form of, relevantly, an action for money had and received.[27] Counsel for Gunnadoo submitted that these matters had been covered by par (3) of the indorsement to the writ and had been adequately pleaded in pars 38, 39(a) ‑ (c) and 43(a) ‑ (b) of the amended statement of claim.[28]
[27] Plaintiffs' closing submissions, pars 2(a) ‑ (i); BB 101 ‑ 102.
[28] Plaintiffs' closing submissions, par 2(h); BB 102.
In written closing submissions filed on behalf of Ms Brown, counsel for Ms Brown referred to the allegations that Ms Brown had stolen money and denied those allegations.[29] Counsel also submitted that there was no satisfactory evidence of any defalcation.[30] Counsel again observed that in relation to the allegations of theft, Gunnadoo appeared to be seeking, relevantly, restitution.[31] It was not alleged in written closing submissions on behalf of Ms Brown that the claims of the alleged theft fell outside of the indorsement to the writ.
[29] Defendants' closing submissions, pars 103 ‑ 104; BB 155 ‑ 156.
[30] Defendants' closing submissions, pars 105 ‑ 117; BB 156 ‑ 157.
[31] Defendants' closing submissions, par 12; BB 137.
Evidence was given at the trial in relation to the alleged defalcations. Mr Hateley's evidence‑in‑chief in this regard was outlined in an amended witness statement dated 22 May 2013 at pars 64 ‑ 65, 68 ‑ 74, 76, 80 ‑ 81,[32] and in his responsive statement dated 11 April 2014, pars 13, 22.[33] These witness statements were admitted into evidence without objection and became exhibits 1[34] and 2[35] respectively.
[32] GB 7 ‑ 9.
[33] GB 16 ‑ 17.
[34] ts 35.
[35] ts 40.
Ms Thomson gave evidence to similar effect in her witness statement dated 22 May 2013 at pars 44 ‑ 58, 62 ‑ 65,[36] and in her responsive statement dated 11 April 2014 at pars 24 ‑ 30.[37] These witness statements were admitted into evidence without objection and became exhibits 46[38] and 47[39] respectively.
[36] GB 22 ‑ 24.
[37] GB 28 ‑ 29.
[38] ts 224.
[39] ts 237.
Ms Brown gave evidence on these topics in her witness statement dated 11 February 2014 at pars 87 ‑ 107, 135 ‑ 141.[40] That witness statement became exhibit 67.[41] Ms Van Mil gave oral evidence as to the audit, and was cross‑examined.[42]
[40] GB 42 ‑ 44, 47.
[41] ts 376.
[42] ts 158 ‑ 173.
In relation to the alleged defalcations, Mr Hateley was cross‑examined[43] and re‑examined;[44] Ms Thomson was cross‑examined[45] and re‑examined;[46] and Ms Brown was cross‑examined.[47]

Ms Van Mil's evidence

[43] Especially ts 194 ‑ 197.

[44] ts 211 ‑ 212.

[45] Especially ts 324 ‑ 330.

[46] ts 345 ‑ 347.

[47] Especially ts 426 ‑ 430, 444 ‑ 450, 470 ‑ 471, 505 ‑ 506, 514.

Ms Van Mil is Ms Thomson's daughter. She gave evidence to the following effect:
(a)She had worked in retail outlets over many years, including in a managerial capacity involving 'end of day cash ups', and the supervision and rostering of staff.[48]
(b)On a Thursday in February 2011 (which implicitly was Thursday, 24 February 2011),[49] she was working in the newsagency with Ms Brown when she noticed a 'very unusual' amount in one of the department's sales. She raised it with Ms Brown who said that whilst it was unusual, it was nothing to worry about and that the 'tills balanced at the end of the day'.[50]
(c)She decided not to ask Ms Brown to explain it to her because it was late in the business day and she decided to pursue it herself as she knew 'how to find a mistake on a journal roll'.[51]
(d)Also, late in that day (Thursday, 24 February 2011), she heard a till drawer open and close when there was no one else in the shop apart from Ms Brown.[52]
(e)In looking for the original error she 'discovered a whole lot of entries that were serious discrepancies'.[53] She was then instructed by Mr Hateley to do a full audit when she started showing him what she was finding on the till rolls.
(f)In doing her audit, she went through all the days since 'takeover'[54] and she looked at days when Ms Brown was not on the roster.[55]
(g)She did a 'report'.[56]
[48] ts 159.
[49] ts 176.
[50] ts 162.
[51] ts 162.
[52] ts 170 ‑ 171.
[53] ts 162.
[54] ts 162.
[55] ts 177.
[56] ts 162, exhibit 42; GB 264 ‑ 270.

Ms Van Mil's 'report' comprised handwritten notes concerning the period August 2010 ‑ December 2010. She recorded that the till rolls for certain dates and periods were missing, and that certain till rolls had been cut. Her notes recorded the transactions on the till rolls she had examined by reference to date, time and transaction number. She noted various transactions described as 'return' in connection with certain types of sale, eg, 'return ‑ magazines', 'return ‑ instant [lottery]', and 'return - stationery'. The amount of each transaction was noted as being in a round number in a multiple of 10, eg, $10, $20, $50 etc.
In her oral evidence Ms Van Mil explained two such transactions in her report:[57]
[57] ts 166 ‑ 167.
STOKES, MR: Yes, have you got the transaction 218?---Yes.
And what was the date of that transaction?---That was 13 August 2010.
And 15:31 refers to what entry on the till roll?---That refers to the time and the entry number was number 218 which is the 218th transaction for the day.
So what's 15:31?---That's the time according to this roll.
But what time - what o'clock would it be?---3.31.
Thank you. And what does transaction 218 refer to on 13 August, I think you said, 2010?---218th transaction of that day.
Yes, and what was that entry?---It was an entry where the return key has been pressed; magazines department $50 total and it's been cashed out.
And what does that - - -?---Well, generally the return key would only be used to correct an error it it's been entered in twice or entered in incorrectly. There is no corresponding error sale and also a $50 return key from a magazine department as a round number is extremely unusual. Magazines are 9.95, 14.95, 2.99 - - -
When you hit the magazine return key on tills 1 and 2, what happens?---It deducts the - the amount from that department. So you press the return key first then you deduct $50 from the magazine department and press 'Cash' and it reduces the amount of that department by $50.
Does anything on the till besides recording something on the till roll, does anything on the till occur?---Um.
When I press that button does - - -?---Well, when you press 'Cash' the drawer opens and the transaction's completed.
Okay. So can you go to roll 3 at 14.51 on 19 August 2010?---Yes, I have that here.
Now, what was transaction 253 all about?---Transaction 253 is the same thing occurring where the return button has been pressed.
For what?---Instant Lottery has been returned to the value of $100 exactly - - -
And - - -?---- - - which is extremely unusual because most instant lottery tickets are $1, $2, $3 or $5. There's a $20 and a $10 ticket but to return $100 as a round number is very unusual.
Well, from your experience in the shop in those months between August and February under what circumstances would the shop refund money for instant lotto?---It would not go through as a refund. We have another key which is called a 'Payout key' so if someone was to win $100 on a scratch and win ticket you would use the lottery payout key, you wouldn't return the sale.
So when somebody brought in a[n] unused instant lotto scratchy and asked you for their money back, would they get it?---No.
Did that ever occur to you when people wanted to return - - -?---Nobody ‑ ‑ ‑
- - - unused lotto tickets?---Nobody ever - nobody ever asked that.
Ms Van Mil accepted in cross‑examination that she did not do a cash balance for each of the till rolls to which she referred,[58] but her evidence included the following:
You have to go through each transaction because if the return has actually been processed through the till - - -
Yes? --- - - and the cash is being taken out of the till - - -
Yes? --- - - the till will balance at the end of the day.
(emphasis added)
[58] ts 173 ‑ 174.
It is convenient to record here that in annexure A to her written submissions in this appeal, counsel for the appellants set out a table of the dates and transactions referred to by Ms Van Mil in her report. The table indicates that the evidence shows that:
(a)the report covers 17 transactions;
(b)the rosters tendered by Gunnadoo covered the majority of the transactions, but not the transactions on 13 and 19 August 2010 (totalling $150);[59]
(c)in respect of all the transactions in relation to which rosters were in evidence, the rosters indicated that Ms Brown was rostered on for the days covering the transactions identified by Ms Van Mil, but the rosters also indicated that other persons were rostered on around the times of the transactions. Those other persons included Mr Hateley, Ms Thomson, Ms Van Mil and, on four occasions, a person referred to as 'Ann', and, on two occasions, a person referred to as 'Jess'. Ms Brown was the only person rostered on at or around the time of all transactions occurring on days for which rosters were tendered; and
(d)four transactions occurred at times, ranging from 4 ‑ 20 minutes, prior to the scheduled commencement time for Ms Brown according to the rosters, and one transaction occurred one hour and two minutes prior to the scheduled commencement time according to the relevant roster.
[59] The table indicates that no roster was in evidence for 17 November 2010, but that does not appear to be correct; see GB 296.

Disposition

Counsel for the appellants accepted, in effect,[60] that there was only one substantive issue in the appeal, expressed in various ways through grounds 2 and 4 ‑ 8, which was whether it was open to the judge to find that Ms Brown had taken $1,290 from the till having regard to the Briginshaw standard.
[60] Appeal ts 10 ‑ 13.
If, as counsel in effect accepted,[61] that finding was open on the evidence, ground 1 could not avail the appellants in seeking to set aside the judge's order for payment of $1,290 plus interest. It is accordingly unnecessary to deal with the legal issues raised by ground 1 as they can have no bearing on the proper disposition of the appeal. Also, the issue of defalcation itself was plainly a live issue at the trial, and, as counsel recognised,[62] ground 3 could not assist the appellants. Ground 9 was consequential and would only arise if the other earlier grounds were successful.[63]
[61] Appeal ts 12.
[62] Appeal ts 13.
[63] Appeal ts 38.
In relation to the substantive issue raised by the appeal, it is convenient to recall at the outset the observations of the High Court in Rejfek v McElroy.[64] After referring to the principle in Briginshaw, the court stated:[65]
But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge.
[64] Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517.
[65] Rejfek (521 - 522).
The question of whether the finding that Ms Brown took money from the till was open on the evidence is to be considered in light of the unchallenged findings of fact by the judge to the effect that:[66]
•on Saturday, 26 February 2011, Mr Hateley had spoken to Ms Brown about an alleged till discrepancy;
•as a consequence of this discussion, Mr Hateley directed Ms Brown not to commence her shift on 26 February 2011;
•it would have been clear to Ms Brown from that discussion that her engagement by Gunnadoo was being terminated;
•Ms Brown subsequently entered the newsagency outside business hours and without Gunnadoo's authorisation and removed till rolls;
•in Ms Brown's text message to Ms Thomson explaining her entry into the premises outside of business hours, Ms Brown omitted any reference to the fact that she had taken the till rolls of the business;
•Ms Van Mil conducted a till audit after 26 February 2011, in which she found a number of unusual discrepancies concerning credits for alleged return of stock; and
•in respect of most cases identified by the audit, it would be quite unusual for a return of stock to be effected.
[66] See primary reasons [136], [192].
These findings are to be read in the context that Ms Brown had, in effect, acknowledged in her pleading[67] and in her evidence[68] that there was a second occasion on which she obtained the till rolls of the business without authorisation. Her pleading was to the effect that:
(a)after receiving a letter of demand from the plaintiffs, she had requested an employee of the business, Ms Millard, to procure for her the till rolls of the business for January 2011;
(b)Ms Millard had provided till rolls to her on 29 March 2011; and
(c)she (Ms Brown) returned the till rolls to the police on 2 April 2011.
[67] Amended defence of the first and second defendants, pars 37 - 39; BB 80 - 82.
[68] ts 451.
In this context, the following observations may be made. First, it was open to the judge to accept the evidence of Mr Hateley and Ms Thomson that Ms Brown had admitted taking $150 from the till on Thursday, 24 February 2011. The question of the weight to be given to that evidence was a question of fact for the judge.[69] Whilst the judge made a number of specific credibility findings adverse to Mr Hateley and Ms Thomson,[70] his Honour nevertheless heard the competing evidence on this particular topic and the way in which it unfolded at trial, and evidently preferred the evidence of Mr Hateley and Ms Thomson on this point over that of Ms Brown. There is no error in that regard. His Honour was entitled to 'accept all, or some, or none' of the evidence given by the witnesses at trial.[71] The fact that Ms Van Mil's report did not, in terms, refer to the 24 February 2011 incident does not undermine the evidence of Mr Hateley and Ms Thomson in that regard. Whilst Ms Van Mil's report only covered transactions for the period August to December 2010, and not February 2011, the effect of her oral evidence was that there was a discrepancy for 24 February 2011 for which she could find no adequate explanation, and it was this which prompted the investigation into the earlier period.[72]
[69] Cross on Evidence (10th Aust ed, 2015) [1585].
[70] Primary reasons [185] - [187].
[71] McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8, 9.
[72] ts 162, 165, 176.
Further, whilst Ms Brown was not specifically cross‑examined on her denial that she had made the admission, the cross‑examination as a whole on this topic was plainly to the effect that she had taken money from the till. Also, it does not appear that Mr Hateley or Ms Thomson were directly cross‑examined on their evidence that Ms Brown had made the admission, and in any event, there is no concession on the part of either witness that Ms Brown did not make the admission.
Secondly, his Honour rejected Ms Brown's evidence that she only removed the till rolls after business hours to examine them with a view to defending herself from unjust accusations.[73] That finding was, it may be inferred, at least to some considerable extent, based on credibility, in respect of which the limited scope for appellate review is well known.[74] In Fox v Percy,[75] Gleeson CJ, Gummow and Kirby JJ referred to the 'natural limitations' of an appellate court proceeding wholly or substantially on the record and said:[76]
These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
[73] Primary reasons [193].
[74] See, eg, State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588; Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 and Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.
[75] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.
[76] Fox [23].
The fact that Ms Brown returned the till rolls is not inconsistent with the inference that she took them without authorisation in the first place because she was concerned about the discrepancies referred to by Mr Hateley and Ms Thomson.[77] Indeed, her return of the till rolls by the Sunday night is not inconsistent with an intention to go and see Mr Hateley and Ms Thomson face‑to‑face and admit wrongdoing, seek forgiveness and hope that the matter would not be pursued. That is effectively what Mr Hateley and Ms Thomson said that she did on the night of 27 February 2011.
[77] Appeal ts 26.
Thirdly, it is necessary to consider the appellants' submission that there was no credible evidence that Gunnadoo had less cash than it should have had from sales in the period covered by Ms Van Mil's report or that any money belonging to Gunnadoo had in fact been taken by anyone.[78] The contention was, in effect, that in the absence of evidence as to cash and EFTPOS reconciliations with the 'end‑of‑day summaries' generated by the till, or other evidence, it could not be shown that there was any deficiency in Gunnadoo's money.[79] Counsel for Ms Brown submitted that if there had been evidence that the tills balanced on days where there had been return transactions, then this could be reason to suspect that money had been taken pursuant to the entry of those transactions.[80] On the other hand, if there were evidence that the tills did not balance, or evidence that the cash register was in surplus, then this could indicate that the return transactions were entered inadvertently and no money was taken or less money was taken than the return figures.[81] In this context, counsel submitted that there was evidence from Ms Brown that on one particular occasion, being 24 February 2011, when a balance was conducted, the till was in fact over by $90.[82] Further, while CCTV footage was available, Ms Thomson did not view it to see if money had been taken from the till.[83]
[78] Appellants’ grounds of appeal, par 2; WB 4; Appeal ts 14.
[79] Appellants’ submissions, pars 26-29, 37; WB 13, 15; Appeal ts 14-16, 21, 23.
[80] Appellant’s submissions, par 27; WB 13; Appeal ts 14.
[81] Appeal ts 17, 19-22.
[82] Appellants’ submissions, par 39; WB 15; Appeal ts 15-17.
[83] Appellants’ submissions, par 30,; WB 13; Appeal ts 17-18.
In the primary court, Ms Van Mil accepted that if the 'return' button was pressed inadvertently and no cash was taken out, the cash would exceed the figure recorded in the till roll for that day. Her evidence was, relevantly:[84]
[84] ts 174 - 175.
Yes?---If you're pressing the return button, $50 at a time, then you'd assume that your cash would be 100, 200, $300 over at the end of the day.
Did you do that exercise?---Well, the till balanced the day that we were there. The day that I was there.
That one day. So for each of these till rolls did you do a cash balance or an Eftpos balance?---No, I didn't.
Didn't do any comparison to that?---But there would have been a record of it being over.
But you didn't do any?---I personally didn't, no.
No, but you don't know if there's actually - even if there's a $50 return you don't know if the cash was - had an extra $50 in the till?---No, I don't know that.
No. So if there was $50 in the till that means the return button might have been used for something incorrectly?---It would be very unusual but, yes.
It might be unusual but that's - - -?---Yeah.
- - - it's certainly the case, isn't it?---That'd be the case.
(emphasis added)
That matter was also referred to in the following exchange:[85]
[85] ts 178 - 179.
No, and I think my friend said that you never returned - you wouldn't return an instant lotto - you wouldn't return $100?---Well, I didn't say you wouldn't return it but it would be quite unusual and also you would normally find the actual incorrect transaction previous to that which I didn't find.
Okay?---And to return $100 worth of instant sales is - - -
But if someone's plugged in 100 instead of a dollar they might use that button, mightn't they?---Yes.
Yes?---But in this case that - - -
Yes?---I - - -
But they might not do it immediately beforehand, they might say someone might - one of the - the young kids might say, 'Sue, this morning I rang something up and it was a dollar but I accidentally hit 100'?---Yeah.
So someone later in the day could then use that return button, couldn't they, to reverse the 100?---They could.
Yes. So it's not necessarily going to show up immediately beforehand?---No, but it would show up at some stage and - - -
But did you - - -?---- - - for it to happen this often with no corresponding - - -
But did you look for that? Did you look for any entry - - -?---Yes, I did.
- - - of $100?---Yes.
You did look for that through the till rolls?---Mm hmm.
And there was no instant - - -?---No. There's also other things on here where there's an X reading been done on a couple of departments. So you do an X reading to find out what has been sold up to date in the magazines or the instant - - -
Yes?---- - - and then followed directly by a return from those same departments for 50 or $100. That's very unusual behaviour.
But they're not necessarily going to follow directly after the error that they're - it's correcting?---No, they're not but I have been looking.
(emphasis added)
Accordingly, Ms Van Mil's evidence was to the effect that had there been a surplus of cash, there would have been a record of it which she would have noted in the course of preparing her report. Her evidence was also to the effect that the particular types of errors postulated by the cross‑examiner which might be consistent with a surplus in cash at the end of the day would be 'very unusual' to make in practice, and that she looked for them but did not detect any such errors. It was open to the judge to accept her evidence.
In relation to the $90 surplus on 24 February 2011, the judge was not bound to accept Ms Brown's evidence. Ms Van Mil said that the till balanced at the end of the day.[86] Also, Ms Van Mil's evidence was that Ms Brown had told her that the till had balanced. According to Ms Van Mil, Ms Brown acknowledged the unusual nature of the transaction, but Ms Brown had said, '… don't worry about it. The tills balanced at the end of the day'.[87] Further, even if the cash was 'over' by $90 at the end of 24 February 2011, that does not necessarily preclude a finding that $150 had been removed without authorisation from the till earlier in the day.
[86] ts 174.
[87] ts 162.
In relation to Ms Thomson's failure to review the CCTV footage, her evidence was to the effect that, given the angle of the camera, it would not pick up a surreptitious removal of money. [88] It was open to the trial judge to accept this evidence. In any event, neither side sought to tender the CCTV footage in relation to 24 February 2011.
[88] ts 337.
Ultimately, counsel's submission on this point was to the effect that additional evidence may have been available to assist in determining whether money was taken from the till. However, the submission does not go so far as to demonstrate that on the totality of the evidence before the judge, it was not open to him to conclude that the unusual 'returns' identified by Ms Van Mil in her report had been associated with the removal of a corresponding amount from the till.

The next point raised by the appellants was to the effect that as Ms Van Mil was the daughter of Ms Thomson, the judge should have given no real weight to her evidence.[89] That was allied to a submission that Ms Van Mil did not approach her 'audit' with an open mind, but rather with a predetermined intention to blame Ms Brown. These contentions should be rejected. Ms Van Mil's evidence was, in substance, based on (1) her expertise and experience in operating, and supervising others who operated, cash registers and the associated production of till rolls; (2) her familiarity with the nature, type and scope of transactions commonly undertaken in the newsagency business having worked there; and (3) her review of the underlying business records. Broadly speaking, her conclusions could be tested and contested by reference to her expertise and experience, and by reference to the content of the underlying business records which she reviewed. Further, the judge was aware of Ms Van Mil's relationship with Ms Thomson. He had the opportunity of hearing Ms Van Mil give evidence. He was well placed to be attuned to the possibility of conscious or subconscious bias on the part of Ms Van Mil. There was no real contest that the transactions identified by Ms Van Mil in her report were very unusual, or that they occurred on the dates set out in Ms Van Mil's report. There was no competing report provided by the appellants in relation to the matters the subject of Ms Van Mil's evidence. The judge evidently accepted Ms Van Mil as a truthful and credible witness. No error is disclosed in accepting her evidence on account of her relationship with Ms Thomson.
[89] Appeal ts 38.
Next, it was suggested that Ms Van Mil lacked the requisite experience or expertise to give her evidence.[90] That contention should be rejected. In the very specific areas in which she claimed expertise and experience, it was plainly open to the judge to accept that she was well qualified to give the evidence which she did.[91]
[90] Appellants' submissions, par 80; WB 22.
[91] ts 159 - 160.
Finally, it was submitted, in effect, that the judge erred in inferring that it was Ms Brown who had taken money from the till. The contentions in this regard were as follows. First, it was said the inference was not open because Ms Brown had given evidence that on the second occasion that she had obtained the till rolls without authorisation, she had observed similar transactions for periods when she was not working at the shop.[92] Secondly, it was said that Ms Van Mil's report was unreliable because the clock on the till closest to the front door was out by about an hour and a quarter or an hour and 45 minutes.[93] Thirdly, counsel said that the inference was not open in that Ms Van Mil's evidence indicated that other people were rostered on at the time that the unusual transactions identified by Ms Van Mil occurred.[94] Fourthly, it was submitted that the discrepancies to which counsel referred in the schedule to the appellants' submissions (see [32] above) indicate that the inference could not properly be drawn.[95]
[92] Appellants' submissions, par 86; WB 24; ts 451.
[93] Appellants' submissions, par 84.2; WB 23; appeal ts 33, 35; ts 169 ‑ 170.
[94] Appeal ts 33, 35 ‑ 38.
[95] Appellants' submissions, pars 83 ‑ 84; WB 23.
The question of whether the judge could properly draw the inference he did is to be considered in light of the observations of this court in Leeder v The State of Western Australia:[96]
As the appeal turns substantially on the learned trial judge's findings of fact, it must also be recognised that the onus which lies on an appellant who appeals against findings of fact goes beyond merely showing that an alternative finding was available on the facts. The appellant must show that a factual error was made by the learned trial judge. As the Full Federal Court said in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359:
'The court must be satisfied that the judgment of the trial judge is erroneous ... The court is unlikely to be satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made.'
[96] Leeder v The State of Western Australia [2008] WASCA 192 [84].
As to the first point raised by counsel, Ms Brown's evidence was to the following effect. When she went through the till rolls following the second occasion that they had been removed from the business premises without authorisation, she made 'notes' of similar transactions in other periods when she had not been working at the shop, and she gave these notes to the detectives. Her notes were not in evidence and the occasions to which she referred were not otherwise identified, so, nothing specific was before the judge in that regard. Further, Ms Van Mil said that when she looked at the roster records for the days when Ms Brown was not rostered on, she did not find any anomalies of the character described in her report.[97] Insofar as there was a conflict of evidence, the judge was not obliged to accept Ms Brown's evidence on that topic.
[97] ts 177.
As to the second point, the timing discrepancy on the till roll was disclosed by Ms Van Mil in her examination‑in‑chief, and her evidence was that she took this into account in preparing her report.[98] The judge was entitled to accept that evidence.
[98] ts 169 ‑ 170.
The third point involves the proposition that Mr Hateley, Ms Thomson, Ms Van Mil, 'Ann' and 'Jess' also had the opportunity to put through the unusual transactions and take money from the till on the days that they worked with Ms Brown at the shop. Accordingly, it was submitted, in effect, that it was not open to the judge to infer that it was Ms Brown who was responsible for the anomalies. This submission was also put to the trial judge.[99] The submission ignores the overall effect of all the other evidence, referred to earlier, which the judge was entitled to accept and which could properly influence the drawing of this particular inference. Further, counsel for the appellants did not suggest that she had put to Mr Hateley or Ms Van Mil, in cross‑examination at the trial, that they had taken money from the till by registering anomalous transactions. Nor, from a review of the transcript, is it apparent that such a proposition was put to those witnesses. At one stage it was put to Ms Thomson that she had taken 'black money' from the business, but Ms Thomson denied that.[100] It was open to the judge to accept that denial. Also, it would have been purely speculative for the judge to infer, on the evidence in this case, that 'Ann' or 'Jess', neither of whom were called as witnesses, might plausibly have taken the money or been involved in such very unusual transactions. In a civil case, the mere failure to exclude a reasonable possibility consistent with innocence does not preclude a finding, made on the balance of probabilities and bearing in mind the principles in Briginshaw, that misconduct occurred. Further, none of the other employees were rostered on at or about all of the times, for which rosters were in evidence, when money was taken.
[99] Defendants' closing submissions, par 116.4 ‑ 116.5; BB 157.
[100] ts 319 ‑ 320.
As to the fourth point, it was open to the judge to infer that in the context of the evidence as a whole, the timing discrepancies in respect of the roster to which counsel for the appellants referred in the schedule to the submissions (see par (d) of [32] above) were not material, and that the transactions probably occurred on occasions when Ms Brown was at the shop. The transactions on 13 and 19 August 2010 (see par (b) of [32] above) are, however, different in that without the rosters being tendered, there is no documentary evidence that Ms Brown was rostered on for those days. On the other hand, the nature and type of the unusual transactions on those days are consistent with the other transactions which occurred when Ms Brown was rostered on. There was no evidence from Ms Brown that she did not work those days. The transactions fit a pattern of conduct at the till which, when the evidence is taken as a whole, the judge was entitled to infer was attributable to Ms Brown.
Accordingly, when the evidence is looked at in its totality, and bearing in mind the Briginshaw standard, we are not persuaded that the judge's inference was wrong in fact.
For these reasons, it has not been shown that the judge erred in finding that Ms Brown took the money from the till. Grounds 1 ‑ 8 should be dismissed. Ground 9 was merely consequential and depended upon the success of grounds 1 ‑ 8. Accordingly, ground 9 should also be dismissed.

The adjournment application

As indicated earlier, the respondents applied, by application dated 30 June 2016, to adjourn the hearing of the appeal, to extend the time for the payment of security for costs, and for an order that the matter be sent to mediation. The application was opposed by the appellants.
The respondents' application was supported by two affidavits of Ms Thomson filed 30 June and 13 July 2016 respectively. The effect of Ms Thomson's evidence was that she considered that Mr Hateley was not in a fit mental state to deal with the appeal; she regarded herself as incapable of dealing with the issues in the appeal; she and Mr Hateley presently had no funds to provide security for costs of the cross‑appeal, but they had entered into a contract for the sale of land for which they expected settlement to occur on 29 July 2016, and from which she expected to recoup sufficient money to enable security to be given; and that she and Mr Hateley 'wish[ed] to attempt to settle the proceedings'.[101]
[101] Ms Thomson's affidavit, 30 June 2016, par 28.
Ms Thomson annexed certain correspondence from Mr Hateley's general practitioner, including a letter dated 8 July 2016. In his letter, the doctor referred to Mr Hateley as having 'ongoing concerns with activities of daily living - Insomnia, loss of concentration, memory deficit', and concluded by saying that 'it would be appreciated if [Mr Hateley] did not have to deal with complicated legal advise [sic] and decisions for at least the next six months'.[102]
[102] Annexure SET1 to Ms Thomson's affidavit, 13 July 2016.
The respondents' application was rejected for the following related reasons. First, the appeal and the cross‑appeal deal with quite separate issues and there would be no material advantage to the court or the parties in deferring the hearing of the appeal, which has already been the subject of considerable delay occasioned by the respondents, so that it could be heard together with the cross‑appeal. Secondly, in any event, the cross‑appeal stood dismissed for the non‑payment of security. Thirdly, there was no proper basis to extend the time for payment of security in circumstances where, at the time of the application, the respondents admittedly had no funds to make the payment. Fourthly, for the reasons given in the earlier security for costs application,[103] the cross‑appeal as formulated is defective in form and substance. There has been no attempt to address its deficiencies since security was ordered on 11 April 2016. No benefit would be served by allowing an extension of time or deferring the hearing of the appeal in circumstances where the cross‑appeal remains inherently defective. Fifthly, the appellants' appeal is principally against Gunnadoo in whose favour the primary court ordered Ms Brown to pay the judgment sum, including interest, of $1,558. Gunnadoo may only act through a solicitor,[104] unless the court in its discretion permits an individual to appear as an advocate for Gunnadoo.[105] Given the delays to date associated with bringing this appeal to a hearing, it would not be appropriate to adjourn the hearing of the appeal on the basis that, at some indeterminate point in the future, Mr Hateley may be well enough to apply to appear as an advocate for Gunnadoo at the hearing. Further, and in any event, the court had before it the respondents' answer to the appeal which was filed at a time when the respondents were legally represented. In relation to the question of mediation, it was not in the interests of justice to disrupt the orderly disposition of the appeal on the basis of such an extremely late application and, in the particular circumstances of this matter, there was no reason to suppose that an order for mediation would result in anything other than further unnecessary delay.
[103] Ardela Holdings Pty Ltd v Hateley [2016] WASCA 65.
[104] Civil procedure Western Australia [4.3.1].
[105] Civil Procedure Western Australia [34.5.2].