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 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

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.

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”.

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bird v Fesl

Details

AGLC: Bird v Fesl [2012] QCATA 13
Case: [2012] QCATA 13
Decision Date: 23 January 2012

CaseChat Overview and Summary

The plaintiff, Bird, brought an action against the defendant, Fesl, in the Magistrates’ Court of Victoria in relation to a debt owed. Bird sought leave to appeal against an order dismissing the claim. The defendant opposed the application, contending that the appeal would be unlikely to succeed. The court had to determine whether the appeal was frivolous or vexatious and if the findings made by the primary judge were contrary to the evidence or whether they precluded an appeal.

The court examined whether the findings of the primary judge were contrary to the evidence. It was found that the primary judge had made errors in fact and law, particularly in relation to the assessment of creditworthiness. The court held that these errors were significant and warranted the setting aside of the primary decision. The court also considered whether the findings as to creditworthiness precluded an appeal, but determined that this was not the case.

Accordingly, the court granted leave to appeal and set aside the order made on 28 February 2011. In its place, the minor debt claim initiated on 2 December 2010 was dismissed. The court's decision was based on the errors identified in the primary judge's assessment of the evidence and findings of fact and law. The appeal was not deemed to be frivolous or vexatious, and the plaintiff's application for leave to appeal was successful.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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