Sharpe v McCulloch, Eva

[2007] NSWSC 1467

CITATION:	Sharpe v McCulloch, Eva [2007] NSWSC 1467
HEARING DATE(S):	11 December 2007
JUDGMENT DATE :	14 December 2007
JURISDICTION:	Common Law
JUDGMENT OF:	Associate Justice Harrison
DECISION:	(1) The appeal is dismissed; (2) The decision of Magistrate Lulham dated 22 January 2007 is affirmed; (3) The summons filed 19 February 2007 is dismissed; (4) The plaintiff is to pay the defendant's costs as agreed or assessed.
CATCHWORDS:	APPEAL - Local Court - unpaid wages
LEGISLATION CITED:	Local Courts Act 1982
CASES CITED:	Allen v Kerr & Anor [1995] Aust Torts Reports 81-354 Azzopardi v Tasman UEB Industries Ltd Carr v Neill [1999] NSWSC 1263 Devries v Australian National Railways Commission (1993) 177 CLR 472 RL & D Investments Pty Ltd v Bisby (2002) 37 MVR 479; {2002} NSWSC 1082 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588 Swain v Waverley Municipal Council (2005) 220 CLR 517
PARTIES:	Dominic Sharpe (Plaintiff) Eva McCulloch (Defendant)
FILE NUMBER(S):	SC 10903/07
COUNSEL:	Mr M Boulton (Defendant)
SOLICITORS:	Mr D Sharpe (Plaintiff in person) Solari Legal (Defendant)
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	3603/06
LOWER COURT JUDICIAL OFFICER :	Lulham LCM
LOWER COURT DATE OF DECISION:	22 January 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

FRIDAY, 14 DECEMBER 2007

10903/2007 - DOMINIC SHARPE v EVA McCULLOCH

JUDGMENT (Appeal decision of Local Court
- unpaid wages)

1 HER HONOUR: By summons filed 19 February 2007 the plaintiff seeks to appeal the decision of his Honour Lulham LCM made in the Local Court, Downing Centre on 22 January 2007.

2 The plaintiff is Dominic Sharpe who was the defendant in the Local Court. The defendant is Eva McCulloch who was the plaintiff in the Local Court. For convenience in this judgment I shall refer to the parties by name.

3 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 73 of the Local Courts Act 1982 permits a party who is dissatisfied with a judgment as being erroneous on a point of law to appeal to this Court. The onus lies on the plaintiff to demonstrate that there has been an error of law. What is a question of law (as opposed to a question of fact) was considered, inter alia, in Allen v Kerr & Anor [1995] Aust Torts Reports 81-354; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156; Carr v Neill [1999] NSWSC 1263 and R L & D Investments Pty Ltd v Bisby (2002) 37 MVR 479; [2002] NSWSC 1082. The judicial officer cannot act on evidence inconsistent with facts incontrovertibly established by the evidence - see Devries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588.

4 In Swain v Waverley Municipal Council (2005) 220 CLR 517, the Chief Justice at [2] reiterated that in the common law system of civil justice, the issues between the parties are determined by the trial process. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal.

5 Section 75 of the Local Courts Act provides that the Court may determine an appeal either (a) by varying the terms of the judgment or order, or (b) by setting aside the judgment or order, or (c) by setting aside the judgment or order and remitting the matter to the Court for determination in accordance with the Supreme Court’s directions, or (d) by dismissing the appeal.

Grounds of appeal

6 Mr Sharpe appeals from the whole of the decision of Magistrate Lulham on 22 January 2007. The grounds of appeal are as follows:

“(1) No wage records or time sheets were presented by Eva.

(2) No evidence of rate of pay was presented.

(3) No signed documents by myself showed she had been hired by myself.

(4) Evidence in a form of a wage book was presented that showed others were working at the time Eva said she was working there.

(5) New evidence in the form of bank statements and internet bookings, show that a large amount of money was never banked by Eva.”

7 In relation to (5) no new evidence was furnished to this Court, nor any explanation given as to why it was not available at the time of the hearing in the Local Court.

Local Court proceedings

8 On 20 April 2006 Mrs McCulloch filed a statement of claim pleading that she had not been paid for work done since Mr Sharpe had taken over the running of the budget accommodation business from 4 January 2005 until 30 June 2005 at $17 per hour for 1467 hours. She claimed the sum of $24,939. On 22 January 2007 The Magistrate ordered that there be judgment in favour of Mrs McCulloch in the sum of $12,000.

9 Mrs McCulloch obtained default judgment which has subsequently been set aside. In his reasons to have the judgment set aside Mr Sharpe says:

“I owe no money to Eva McCulloch, I Have never employed her to work at …, her husband Hilton Lorene McCulloch was employing her. I have never been given any time or work sheets from her. My role in the business was silent partner & I never dealt with banking or taking payment from guests. Eva & her husband Hilton were running the business & paying themselves.”

10 Both parties were unrepresented at the Local Court hearing on 22 November 2007. This case was run concurrently with Mr McCulloch’s claim against Mr Sharpe.

11 The grounds of defence were not set out.

12 At t 56.26 Mrs McCulloch asked Mr Sharpe “in the whole time I have ever worked for you and my husband have you ever agreed to pay me?” The answer was “Yes”. While no documents emanating from Mr Sharpe showed that Mrs McCulloch was employed by him, he admitted that he had agreed to pay her. The wage book showing that others worked at the hostel was considered by the Magistrate.

13 The Magistrate in his extempore reasons stated:

“In relation to the claim by Mrs McCulloch, I am satisfied that she did work in the premises from 1 January 2005 to 30 June 2005. I am satisfied that she did so, and did so because Mr Sharpe promised to get someone to take over from her but did not in fact do so.
I am satisfied that Mrs McCulloch attended the premises most days and perhaps seven days a week. Her claim in that regard is supported by the document produced by Mr Sharpe which he says is the wages book of other employees. That shows a person Mary working on a few days and a person Steven, an employee, also working on a few days.
The evidence indicates there were no other employees and this premises ran as a backpackers seven days a week, someone must have been running it, doing the day to day work. I am satisfied it was Mrs McCulloch.
…
I am satisfied that Mrs McCulloch is entitled to be paid for that period. However, the business, in my view, was either a joint venture or partnership. And that the amount to which she is entitled, in my view, would be payable equally by Mr McCulloch and Mr Sharpe.
Doing the best I can, there is no evidence and there is no conclusion supporting an accusation put to Mrs McCulloch that she was paying herself out of the money. There were no accounts provided, no documents provided which would support that proposition.”

14 The evidence was largely disputed by the parties. The Magistrate preferred the evidence of Mrs McCulloch over that of Mr Sharpe. He was entitled to do so. The Magistrate in assessing the wages did not accede to the whole of Ms McCulloch’s claim.

15 There is no error of law. The appeal is dismissed. The decision of Magistrate Lulham dated 22 January 2007 is affirmed. The summons filed 19 February 2007 is dismissed.

16 Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the defendant’s costs as agreed or assessed.

The court orders:

(1) The appeal is dismissed.

(2) The decision of Magistrate Lulham dated 22 January 2007 is affirmed.

(3) The summons filed 19 February 2007 is dismissed.

(4) The plaintiff is to pay the defendant’s costs as agreed or assessed.
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