Jebb v Burdock
[2018] QCATA 28
•26 February 2018
CITATION: | Jebb & Anor v Burdock [2018] QCATA 28 |
PARTIES: | Stephen Jebb and Peter Haines |
| v | |
| Linda Burdock | |
APPLICATION NUMBER: | APL212-17 |
MATTER TYPE: | Appeals |
HEARING DATE: | 5 February 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Member Howe |
DELIVERED ON: | 26 February 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Leave to appeal refused |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – where bookkeeper charged own time – where employer determined the bookkeeper had charged excessive hours –where evidence of a witness not challenged at first instance – where the applicants had proved their case on the balance of probabilities – whether the hours of work were consistent – whether the hours of work varied by task – whether there is a reasonable argument that there is an error to be corrected – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i) Patterson v Paterson (1953) 89 CLR 212 |
APPEARANCES: | |
APPLICANT: | Stephen Jebb and Peter Haines represented themselves |
RESPONDENT: | Linda Burdock did not appear |
REASONS FOR DECISION
Ms Burdock did bookkeeping for the appellants in their businesses. She had worked for them for many years. She worked on a fixed hourly rate of $35 per hour.
Her employers determined she had been over-charging them for hours worked since about 1 July 2015. They terminated her employment in January 2017 and brought an application in QCAT to recover $4,816.87 which they said was the amount of overcharging.
The matter was heard before the tribunal in Townsville on 13 June 2017. The tribunal dismissed the appellants claim. The appellants now bring this application for leave to appeal or appeal.
The application for leave to appeal came on for hearing in Brisbane. The appellants appeared but Ms Burdock did not. She advised the tribunal (by telephone on the morning of the hearing of the leave to appeal) that her personal affairs prevented her from travelling to Brisbane and she was unable to appear by telephone. Her solicitor had applied for leave to appear on her behalf or alternatively asked that the appeal be adjourned for 3 months. That application had not been served on the appellants prior to hearing however and the appellants were caught by surprise by the application.
The appellants did not consent to her being legally represented. The application for leave for legal representation or an adjournment were both refused at the hearing of the application for leave to appeal. The application for leave to appeal proceeded in her absence as she was advised it would on the morning of the hearing of the application for leave to appeal.
Given this is an appeal from a decision made in the tribunal’s Minor Civil Dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[1]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i).
Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[2]
[2]Pickering v McArthur [2005] QCA 294, 2 [3].
An appellant’s grounds of appeal should identify the error alleged to have occurred in the decision below. Often where parties are self-represented, the grounds of appeal identify an error only in the most general of terms. That is the case here.
At the hearing, the appellants were asked to identify what the error was that they sought to be redressed. The ground of appeal from their application is very broadly stated as being, “The tribunal erred in accepting the evidence of the respondent in preference to that of the applicants.”
This ground of appeal fails to say what was wrong with the tribunal preferring the evidence of the respondent to that of the appellants. That may have been appropriate in the circumstances.
The grounds of appeal were somewhat enlarged upon in an attachment to the application for leave to appeal or appeal, in that it is claimed that Ms Burdock’s evidence was false and based on hearsay whereas the evidence of the appellants was in writing taken from bank statements that could not be disputed.
The appellants’ ground of appeal might perhaps, generously, therefore be construed as an assertion that the decision of the tribunal was against the weight of the evidence. The following examination of the application for leave to appeal is based on that ground of appeal.
According to the appellants, Ms Burdock was employed by them to do bookkeeping. They maintain that up until July 2015, she charged 2 hours per week for her work. After 1 July 2015, the hours she claimed increased to double that on occasions. She paid herself and she was not often on the premises when the appellants were themselves there and it was not until some 18 months had passed after July 2015 that they noticed the extra hours being claimed and charged for.
The appellants maintain Ms Burdock’s workload did not change but the hours claimed to do the work did. They say there was no justification for an increase in hours worked.
At the hearing before the tribunal, the appellants tendered a letter from their accountants which said that in recent years the scope of the bookkeeping and administration work required to conduct the business (Sovereign Hotel) had not changed significantly, in fact because of a slowdown in local economic conditions the level of trade had actually decreased which possibly required less paper work. At present time the bookkeeping work was being completed by a consultant who did the work “in approximately 2 hours per week.”
The appellants also tendered their own handwritten breakdown of Ms Burdock’s hours worked from 22 July 2014 to 30 June 2015 which showed she worked and charged for 129 hours over that period at a rate of $35 per hour.
The handwritten breakdown also set out that over the period 1 July 2015 to 30 June 2016, she charged for 166 hours. There then follows a breakdown in respect of the shorter period 1 July 2016 to 3 January 2017, when Ms Burdock left.
The appellants further submitted at hearing that prior to 1 July 2015, Ms Burdock's charges were often limited to $35 only showing her work was often only for one hour at a time, but after 1 July 2015 all her charges were $70 or more.
The appellants’ case is essentially that the difference between 166 hours for the 2016 financial year and 129 hours for the 2015 financial year, taken with what they say is a fixed workload of 2 hours per week, proves that Ms Burdock overcharged them 37 hours for the 2016 financial year. How their claim to all overcharges totals $4,816.87 is not explained or at least not readily discernible from the material put before the tribunal.
The appellants say that whilst Ms Burdock’s workload remained essentially unchanged the business started to contract and indeed her workload may well have reduced. But the hours that she charged them increased from 1 July 2015.
Ms Burdock's evidence before the tribunal was that she not only performed bookkeeping but also other administrative work for which she charged $35 per hour. She said she met with accountants at the end of financial years to go through paperwork and when the appellants were out of town she would do the banking. On Tuesdays she did reconciliation work in respect of poker machines at the appellants hotel and the banking associated with that. She worked most Tuesdays for the appellants and sometimes went into the office on a Saturday or a Sunday. She also took work home.
The appellants claimed the employees were told not to take work home. Ms Burdock said she was not told that.
She said she worked most commonly on a weekend when BAS statements were needed. She referred to a list of duties performed which she handed up to the tribunal.
She said when the appellants were away her hours at their business increased.
Another bookkeeper, Ms Fry, also gave evidence. She had been employed as a bookkeeper for Sovereign Hotel when the appellants had business interests in Cairns as well as Townsville. The business contracted back to having a presence in Townsville only. She was employed to assist in the merging of MYOB databases. There were also problems with payrolls at the time. She worked with both the accountant and Ms Burdock to facilitate the merger of the MYOB accounts.
She worked there from 2012 to 2013, perhaps 18 months. She said sometimes Ms Burdock did work on “the pokies” when the appellants were away and then Ms Fry would work on reconciling, data processing and other things. The work varied depending on whether there were functions occurring or not. She also helped generally at the hotel. They started doing meals and that increased paperwork. There was more purchasing being done which meant more data processing. She worked with the accountant at times. She did not do exactly the same work as Ms Burdock. When things “calmed down” her services were no longer needed and data processing and reconciliation went back to Ms Burdock.
She did say however that after the transformation of the business she continued working solely on bookwork and payroll. She said it sometimes took her 2 hours to do her weekly work and sometimes 4 hours. On average she did more than 2 hours work each week. She also took home paperwork.
The appellants were allowed to cross-examine Ms Fry. She agreed in answer to an initial question that she stopped working for them when the business was declining. But after that one question, no questions were directed to Ms Fry and neither her evidence about working 2 to 4 hours per week work nor any of her other evidence was challenged. In lieu, the appellants made statements to the tribunal describing a downturn in trade which they said reduced rather than increased any bookkeeper’s workload in their business.
The tribunal accepted Ms Burdock’s evidence. The tribunal accepted her explanation as to why her hours had increased over the last few years and accepted that her hours varied because of such things as meetings with accountants and extra duties when the appellants were absent.
The tribunal also accepted the evidence of Ms Fry that her hours of work were highly variable, like Ms Burdock’s.
The tribunal determined that on the balance of probabilities the appellants had not established their case. Accordingly, the appellants’ application was dismissed.
This matter involved somewhat confusing ledgers based on the primary contention on the part of the appellants that the bookkeeper’s role in their business was accomplished by 2 hours work each week. That was not the evidence of Ms Burdock nor Ms Fry. The tribunal gave the appellants an opportunity to challenge Ms Fry’s evidence. Whether through inadvertence or otherwise, they did not. They attempted to do so at the hearing of the application for leave to appeal, but not at the hearing below.
The tribunal was entitled to take Ms Fry’s evidence into consideration as well as Ms Burdock’s and conclude that rather than the hours of the bookkeeper being fixed at 2 hours each week it was variable and the hours could change. That conclusion was possible from the evidence given by Ms Burdock and Ms Fry.
Having reached that conclusion, despite the assertion that prior to
1 July 2015 the bookkeeper’s hours remained constant at 2 hours per week, the appellants’ breakdown of hours worked lost significance.
That the current bookkeeper does the bookkeeping for the appellants in 2 hours each week says little about the tasks Ms Burdock performed in the role.
It seems clear from the transcript of the proceedings below that the tribunal accepted the evidence of both Ms Burdock and Ms Fry. The tribunal had the advantage of hearing from that party and that witness, but the appeal tribunal has not.[3] A decision of the tribunal at first instance based on the credibility of witnesses will not readily be discounted because of the probability of written material, which here was constituted by the breakdown ledger prepared by and relied on by the appellants as “actual hard copy figures”.
[3]Powell v Streatham Manor Nursing Home (1935) AC 243 (Lord Wright) whose comments were referred to by Dixon CJ and Kitto J in Patterson v Paterson [1953] (1953) 89 CLR 212.
The tribunal was entitled to reach the decision it did on the material and evidence of the witnesses before it. Accordingly, the appellants have small prospect of success on the ground of appeal that the decision of the tribunal was against the weight of the evidence.
There being no reasonable argument that the tribunal decision was attended by error, leave to appeal must be refused.
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