James v Calus[2021] QDC 306

DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   On 26 February 2020, a Magistrate gave judgment in an employment claim in favour of the respondent for $1,061.06. 
2. [2]
   The application requires leave to appeal that judgment because it is a minor debt claim. Section 45(2)(b) Magistrates Courts Act 1921 (Qld) provides that leave shall not be granted to appeal such a claim unless the Court is satisfied that “some important principle of law or justice is involved”.
3. [3]
   The range of circumstances which engage that statutory precondition cannot exhaustively be laid out in advance.  However, two matters can be stated with confidence.

   1. (a)
      First, where an appeal is, in substance, merely a challenge or a factual finding, or a mixed question of law and fact, it is very unlikely that of itself will justify leave.^[1] 
   2. (b)
      Second, merely showing error in the decision below, without more, will not justify leave.
4. [4]
   The Notice of Appeal (NOA), for which leave is sought, raises one ground: that the Magistrate erred in denying the applicant procedural fairness in not allowing the applicant to give evidence.  There are two fundamental problems with the prospects of success on this ground of appeal.
5. [5]
   The first problem is this.  At the commencement of the hearing at 9.00am on 26 February 2020, a law clerk, Ms Plantos, attended on behalf of the applicant and sought leave to appear.  Her Honour granted leave.  Ms Plantos then informed her Honour (and I quote from the transcript) that “[w]e do have an outline of submissions prepared.  We don’t seek to rely on any evidence from Mr James as most of the material is in Ms Calus’ affidavit”.^[2]  Her Honour then asked if anyone was giving evidence on behalf of the applicant and Ms Plantos answered no.
6. [6]
   I have read the transcript and I cannot see that Ms Plantos ever changed her position in that regard (although as the proceeding developed during the morning, she seemed to become acutely concerned that something had gone wrong and sought both to delay the start of the proceeding and ultimately to adjourn the proceeding).  To the contrary, she seemed to confirm her previous statement by saying later that the evidence relied upon by the defendant was in Ms Calus’ affidavit.^[3]  It is true that she sought to stand the matter down so that Mr James could attend, but she did not say that was because she had changed her mind and wanted to call him to give evidence.  Her Honour clearly did not draw that inference.  She assumed, entirely reasonably, that the purpose of the request was so that he could be present for the hearing. 
7. [7]
   For that reason alone, this ground of appeal must fail.  Her Honour cannot have erred in not allowing the applicant to give evidence when the applicant’s legal representative informed the Court that he would not be called.
8. [8]
   There is a second problem with this ground of appeal.  The reason that the applicant was not present was said by Ms Plantos to have been because her firm had misunderstood the time the proceedings were to start.  However, it was conceded by Ms Plantos that notice of the date and time (9.00am) had been notified by the Court on 7 November 2019, and it was easily identified in the Daily Law List as a 9.00am start.  Ms Plantos asked if the matter could be stood down to try to contact the applicant and find out how long it would take him to arrive.  Her Honour refused to do so but suggested that someone else from Ms Plantos’ firm do that while the proceeding commenced. 
9. [9]
   That might have been a somewhat strict position for her Honour to take, even allowing for the importance of prompt disposition of such a small claim.  However, there is one consideration which made her refusal plainly justified.  It must have been clear to Ms Plantos’ firm some time before 9.00am that the matter was starting at that time (given that she arrived on time).  There was no explanation why the applicant’s movements were not confirmed before the trial commenced so her Honour could be told exactly when he would be present.  
10. [10]
    There is a compelling case for prompt disposition of all cases, and that applies with force in extremely small employment claims.  Her Honour’s decision was a matter of practice and procedure, and appeal courts are slow to interfere in such matters.  The applicant submitted in writing that there is no discretion to exclude the evidence of a witness, but that proposition is not true in the sense that the applicant relies on it here.  The witness was not present to give evidence when required.  The complaint is therefore a breach of natural justice.  Natural justice does not require a party be heard when and how it suits them to appear, just that a party have a reasonable opportunity to be heard.  The applicant had that opportunity. 
11. [11]
    For this further reason, this second ground of appeal must fail.  I can therefore dispose of the application for leave on the basis that no important principle arises because no error arises on the NOA.
12. [12]
    The applicant by his outline, however, seeks to raise other alleged errors affecting her Honour’s judgment which were not properly raised on the NOA, for which leave is sought. I will deal with them in any event.

Failure to give the applicant an opportunity to make submissions on striking out the statement of claim

13. [13]
    A complaint articulated in the outline was that her Honour refused to hear an application to strike out the statement of claim.  The outline identifies no basis for the conclusion that the applicant had a right to have such an application heard on the commencement of the trial.  Before her Honour, reliance was placed on Rule 171 Uniform Civil Procedure Rules 1999 (Qld) (UCPR).  However, that Rule, indeed the entirety of Chapter 6, does not apply to employment claims: see Rule 522N(a) UCPR. 
14. [14]
    The rules of pleading only apply in employment claims, therefore, to the extent they are necessary to give effect to procedural fairness in the context of that particular kind of claim, bearing in mind that employment claims will frequently involve unrepresented employees/plaintiffs suing for very small sums (as this one did).^[4] Further, this is again a matter of practice and procedure where appellate intervention is restrained. 
15. [15]
    The complaint, as articulated in the applicant’s outline, seemed to be that the document comprising the statement of claim was defective in form.  I have read it.  It was not in proper form if it was required to comply with Chapter 6.  But it was not so required.  Bearing in mind the informality called for in cases of employment claims for minor amounts, my view is that it is tolerably clear what Ms Calus’ case was.  The technical challenge to it by the applicant was misconceived.
16. [16]
    Further, it would be uncommon for a trial Judge to permit a strike out to be argued at the start of a trial, unless it would result in the final disposition of the proceedings.  It is doubtful this would have done so because, once Ms Calus was aware of the complaints as to the form of her statement of claim, she would have been entitled to leave to amend and to adjourn the matter to consider how to do so.  There was a substantial public interest in this small matter proceeding on the day allocated for hearing, particularly once that day arrived.
17. [17]
    I should add that, as I understood the applicant’s oral submissions, this point was not pressed on the appeal because it was recognised that Chapter 6 did not apply to the proceeding. 

Deemed admission issue

18. [18]
    The next complaint articulated in the outline was that her Honour erred in treating the applicant as having failed to put in issue the question of whether he was the employer liable for the wages claimed by Ms Calus.  Her Honour approached this matter on the basis that the applicant had failed to plead any denial of the applicant’s liability on the claim, and therefore it was not open to the applicant to raise that issue on the trial.  That conclusion was open on the defence as filed, which merely said that the claim was denied because “the plaintiff’s claim does not set out a cause of action against the defendant.”
19. [19]
    This broad proposition could cover the factual allegation that the applicant was not Ms Calus’ employer.  It could equally cover any number of other answers to Ms Calus’ claim.  There is some merit in her Honour’s view that the defence did not appraise Ms Calus of the matter of fact which was disputed by the defendant. Equally, it needs to be kept in mind that Chapter 6 does not apply and there are no deemed admissions in employment proceedings under Rule 166.  Her Honour’s comments seemed to proceed on the basis that they did.  If that was her view, that view was wrong.
20. [20]
    On the other hand, it was unclear, from the statement of claim, on what basis Ms Calus asserted Mr James was her employer.  The statement of claim was in an informal form which comprised a narrative that included references to evidence located in attachments and in her affidavits.
21. [21]
    To the extent it deals with the issue, her statement of claim identified Mr James as the defendant and referred generally to her employer in language apt to identify Mr James as the person referred to by that word.  She also made reference variously to “Liberty” and “the organisation”.  The statement of claim also incorporated by reference some documents in an earlier affidavit, particularly pay slips.  Importantly, that included a pay slip stating the pay was “Paid By Liberty Enterprises Ltd”.  On that view, the statement of claim incorporated allegations and evidence that identified Mr James as employer, his organisation as employer and Liberty Enterprises Ltd as her employer.  
22. [22]
    Further, given the informal nature of the pleadings in this case, I consider that her Honour took entirely too narrow a view of the defence.  It stated that the claim was defended on the basis that the claim did not set out a cause of action against the defendant.  That is apt to cover the point which the applicant sought to make.  I infer that her Honour approached the defence on the basis that the requirements of Chapter 6 applied, and perhaps further, that the failure to plead in accordance with the disciplines in Rule 166 UCPR applied in the proceedings.  If so, her Honour erred in doing so, because as I have said, Chapter 6 is not applicable.
23. [23]
    In those circumstances, it was wrong for her Honour to conclude that the identity of the employer did not arise on the pleadings.
24. [24]
    In addition, the applicant submitted in oral argument that her Honour erred in characterising Ms Plantos’ cross-examination on the identity of the employer as irrelevant and in preventing her from further cross-examining on the subject. 
25. [25]
    Her Honour did rule that asking Ms Calus who her employer was, comprised an irrelevant question because that matter was an issue of law, and her opinion on that issue is irrelevant.  Technically, that is a correct ruling, though the question could easily have been framed in a manner which made it relevant: for example, by asking what her understanding was about that matter and then following up the answer with questions designed to elicit evidence of facts from which the identity of the employer could be determined.
26. [26]
    However, the transcript does not support the submission that her Honour did not allow Ms Plantos to ask any questions on the employer issue.  Her Honour’s ruling applied only to the specific issue identified above, and she in fact invited Ms Plantos to continue to ask questions on any issues in dispute on the pleadings. 
27. [27]
    It was understandable, however, that Ms Plantos gave up on the subject at that point, given that her Honour had ruled that the identity of the employer was not an issue on the pleadings.
28. [28]
    Accordingly, I consider that her Honour erred in concluding, in the informal pleading context of this employment claim, that the issue of the identity of the employer did not arise.

Erroneous factual finding issue

29. [29]
    This was in fact the principal point advanced by the applicant on the hearing of the application for leave.  It was contended that the evidence could not support a finding that Mr James was the employer.  It is to be noted that her Honour did not make such a finding on the evidence.  Her reasons based her finding on that issue on her erroneous conclusion that the issue of identity of the employer did not arise.
30. [30]
    In any event, far from certain on the evidence which was led that Mr James was not the employer.
31. [31]
    As I have said, all of Ms Calus’ evidence and pleading expressly identifies Mr James as her employer. Further, she refers to a “charity organisation” or to “Liberty Enterprises”.  This could of course be a trading name used by Mr James.  That material does not compel the conclusion that Mr James was not the employer.
32. [32]
    Similarly, in her cross-examination, she accepts that Liberty Enterprises was her employer and Mr James was not, but it is not established that she understood what Liberty Enterprises was and how it related to Mr James.  It can reasonably be inferred that Ms Calus is not a legally sophisticated person, so her comments referring to Liberty Enterprises etc. are equivocal at best, in contrast to her direct assertion that Mr James was her employer.
33. [33]
    I recognise the significance of the pay slip, but there was no evidence before the Court that Liberty Enterprises Ltd was in fact incorporated.  No Australian Company Number was provided.  Further, there was no other evidence before her Honour on the subject, and as I have said, there was no error in refusing leave to call the applicant because she was told clearly that he was not going to give or call evidence.
34. [34]
    The true position is uncertain, given the lack of evidence from Mr James on the subject and Ms Calus’ limited understanding of the legal formalities.  From the perspective of an application for leave, however, what must be kept in mind is that her Honour did not permit the matter to be explored at trial at all.  Where that is the situation, this Court is not in a position to decide the matter on the current evidence and could not, fairly to either side, do so.  All that can be said for the purposes of the application for leave is that if the appeal succeeded, there is a prospect on rehearing on remittal that the applicant might succeed on the retrial.

No important principle of law or justice

35. [35]
    The point is moot, however, because the error identified is not that her Honour erred in deciding the question of the identity of the employer, but rather that she did not permit that matter properly to be considered at trial.  As stated at the beginning of this judgment, leave must not be given to appeal unless I am satisfied that some important principle of law or justice is involved.  I am not so satisfied.  The error made by her Honour relates specifically to the approach she adopted to identifying the issues which arose on the idiosyncratic pleadings filed in this case. 

Leave would in any event be refused

36. [36]
    Section 45 Magistrates Courts Act 1921 (Qld) regulates this application for leave to appeal.  That section relevantly provides:

45 Appeal

1. (1)
   Subject to this Act, any party who is dissatisfied with the judgment or order of a Magistrates Court—

   1. in an action in which the amount, value or damage involved is more than the minor civil dispute limit; or…

…

2. (2)
   Provided that—

   1. where in any of the cases above referred to in subsection (1) the amount, damage or value is not more than the minor civil dispute limit, an appeal shall lie by leave of the District Court or a District Court judge, who shall not grant such leave to appeal unless the court or judge is satisfied that some important principle of law or justice is involved;…

37. [37]
    In my view, on their proper construction, these provisions confer on the Court a discretion whether to grant leave, with such discretion confined expressly in one respect, that being that leave cannot be granted unless the Court is satisfied of the identified matter.  The alternative construction would be that, on satisfaction of the condition, the Court must grant leave.  However, I think that construction is incorrect.  If that was the intention, one would expect the provision to confer a right of appeal on an applicant in the same form for minor claims as for other claims, but with the former subject to the condition of satisfying the Court of the important princple.  Section 45 does not use such language. Rather, it confers on the Court a power to grant leave.  Ordinarily, such language is apt to confer a discretion.  Nothing in the language of s. 45 suggests the contrary.
38. [38]
    Further, there is good reason to construe s. 45(2)(b) as conferring a discretion.  The evident purpose of imposing a leave requirement for minor claims, in my view, is to ensure that the resources of parties and the Courts are not disproportionately absorbed by disputes over very small sums.  There are many circumstances one can imagine where, although there might be an important principle involved, an appeal would not be proportionate or justified.  As will be seen, this matter is such a case.
39. [39]
    Accordingly, even if I was satisfied that this case gave rise to some important principle of law or justice, I would, in any event, refuse to grant leave to appeal in the exercise of my discretion because the applicant has failed to conduct this appeal in a timely or efficient manner.  Although this matter was not raised by the respondent, who did not appear, I brought the history of the matter to the attention of the applicant’s solicitor and allowed the lunch adjournment for him to consider his response.
40. [40]
    This appeal was commenced by NOA on 25 March 2020. (It should have been commenced by way of an application for leave to appeal, an error not addressed until February 2021).  The Registrar directed the filing of the applicant’s outline of argument by 1 May 2020.  The direction was not complied with. Rather, the applicant sought an extension due to problems in obtaining the transcript.  The extension was given on two occasions ultimately to 10 July 2020.  It appears, from what I was informed from the Bar Table, that the transcript was in hand by August 2020.  However, no outline was filed on or after 10 July 2020, no extension was sought and no explanation for that delay has ever been given. 
41. [41]
    On 15 October 2020, the Registrar referred the matter to a Judge for mention on 4 October 2020.  In early November 2020, Ms Calus applied for an enforcement hearing in the Magistrates Court.  For reasons which I could not discern, on 4 November 2020, a Judge of this Court stayed enforcement of the judgment until determination of the appeal and ordered the applicant to file and serve an application for leave to appeal and outline of submissions by 18 November 2020.
42. [42]
    I could see nothing on the file to indicate that the applicant applied for a stay, much less filed any material in support of such an order.  Nor is there any evidence of notice to Ms Calus, much less that the stay was made with her consent.  If she was not given notice or was given notice but did not consent to the stay, then, on the material on the Court file, the stay should never have been made.  On the documents on the Court file, the making of this order appears to have worked a very substantial injustice on Ms Calus. 
43. [43]
    To be clear, an application for leave to appeal under s. 45(2) does not give rise to any right to a stay of the judgment: Rules 782, 785(1) and 761 UCPR.  Any stay should only be made on an application under Rule 761 UCPR, supported by affidavit material served on the judgment creditor.  
44. [44]
    Be that as it may, the making of the stay imposed an additional imperative on the applicant to pursue his application for leave with alacrity.  He (or more likely his legal representatives) did not. 
45. [45]
    The orders by the Court on 4 November 2020 were not complied with until 10 February 2021 (the outline filed) and 12 February 2021 (the application for leave filed).  And these steps only occurred in the shadow of a further mention before Judge Moynihan QC on 12 February 2021.  There was no explanation offered at the hearing of the application for leave for that delay.
46. [46]
    Ms Calus filed her outline in response and signed a Certificate of Readiness by 13 May 2021. 
47. [47]
    However, the applicant did not sign a Certificate of Readiness until 20 October 2021, some 8 months after the applicant’s outline was filed.  The explanation for that delay offered at the hearing was risible.  The solicitor for the applicant submitted that he did not file a Certificate because he did not know that Ms Calus had filed her Certificate of Readiness.  That provides no rational explanation or excuse for not doing so on behalf of the applicant: see Rule 790 UCPR.
48. [48]
    The conduct of this appeal has been extremely dilatory and (early issues with the transcript aside) no explanation has been given for the repeated delays, much less any proper excuse.  That situation is aggravated by the fact that the applicant has had the benefit of a stay of the judgment for over a year, while dawdling towards a hearing.  Further, the delay occurred in the context of an application for leave to appeal in respect of a very minor debt relating to the modest wages of an employee with very limited means, financial and legal.  
49. [49]
    For those reasons, the conduct of this appeal has been so egregiously inconsistent with the duties of an applicant for leave to appeal as to comprise an abuse of the process.  Even if I was satisfied that the points identified by the applicant involved an important principle of law or justice, I would have refused leave to appeal. 
50. [50]
    It would be open to Ms Calus to refer to these reasons should there be any further delay by the applicant in legal steps Ms Calus might take to enforce her judgment.  Indeed, one would wonder what excuse could remain for not paying the judgment, along with interest on the judgment since it was given in February 2020.