Foster v Byrnes

REasONS FOR DECISION

1. Troy Foster worked for Bernard and Cherrie Brynes, trading as Wirrillah Partnership, for about 18 months on a large rural property, Wirrillah, in western NSW. Under the first of two contracts of employment entered into by the parties, Mr Foster was employed on a full-time basis in an operational role; under the second, entered into in August 2014, Mr Foster was employed on a part-time basis as a farm hand. Each contract of employment required the Byrnes to provide Wirrillah North Homestead (the Homestead), for the exclusive use of Mr Foster and his family; Mr Foster in turn was required to pay all electricity costs associated with the use of the Homestead, apart from $100 per quarter, for which the Byrnes were responsible. As its name suggests the Homestead was located on Wirrillah.
2. In late 2014 a dispute arose about the amount deducted from Mr Foster's wages for electricity use. Mr Foster claimed, and the Byrnes denied, that included in the amount deducted from his wages for electricity costs were costs attributable to electricity consumption by other parts of Wirrillah, such as the fuel depot and machinery shed, for which he was not responsible.
3. The parties were unable to reach agreement and in April 2015 Mr Foster made an application to the New South Wales Civil and Administrative Tribunal (NCAT) claiming that money had been unlawfully deducted from his wages "for electricity use that was not mine" (the Application). Mr Foster wrote in the Application that the Byrnes had deducted from his wages just under $10,000 for purported electricity use spanning the period October 2013 to December 2014.
4. By the operation of s 9 of the Residential Tenancies Act 2010 (NSW) (RT Act) each of the employment contracts the parties is taken to be a "residential tenancy agreement" within the meaning of that Act. Mr Foster claims that the Byrnes breached the residential tenancy agreement by charging him for electricity. The Tribunal had jurisdiction to hear and determine Mr Foster's application under s 190 of the RT Act. If satisfied that the Byrnes had breached the tenancy agreement, the Tribunal had power to make a money order in favour of Mr Foster under s 187(1)(c) of the RT Act.
5. Following a two-day hearing, the Tribunal dismissed the Application. On 7 October 2015, at Mr Foster's request, the Tribunal gave written reasons for its decision (the Reasons).
6. Mr Foster now appeals against that decision. The sole ground of appeal is that the decision was against the weight of evidence. For the reasons that follow we have decided not to grant leave to Mr Foster to appeal the decision.

Statutory framework

1. The decision under appeal is an "internally reviewable decision" (ss 4, 32(4) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act)). A party may appeal an internally reviewable decision on any question of law or with the leave of the Appeal Panel on any other ground: s 80(2)(b) of the NCAT Act.
2. Where, as in this case, the decision the subject of the appeal is a decision of the Consumer and Commercial Division of NCAT, cl 12 of Sch 4 to the NCAT Act limits the circumstances in which an Appeal Panel may grant leave to appeal under s 80(2)(b) of the NCAT Act: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: … (b) the decision of the Tribunal under appeal was against the weight of evidence, or …
3. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel concluded that the term "a substantial miscarriage of justice" in the context of cl 12 of Sch 4 to the NCAT Act means "a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred": at [71].
4. The Appeal Panel went on at [77] to consider the meaning of the phrase "against the weight of evidence" in cl 12(b) of Sch 4: The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach (citations omitted).

Grounds of appeal

1. In a Notice of Appeal lodged in September 2015, Mr Foster asserted that the decision was "against the weight of evidence".
2. While not put in these terms, Mr Foster also asserted that the Tribunal failed to give him a reasonable opportunity to present his case, in breach of s 38(5)(c) of the NCAT Act: I felt that at hearing I wasn't given the opportunity to prove the respondent's documents were erroneous and misleading.
3. At hearing, Mr Foster abandoned this ground of appeal. He stated that while he believed he had not been given a reasonable opportunity to put his case, he conceded that as he had not obtained a copy of the sound recording or transcript of the original proceedings, he was unable to point to any material to substantiate that belief.

Evidence considered in the Appeal

1. Despite being invited to do so, neither party tendered a copy of the sound recording or transcript of the original proceedings. In the hearing of the Appeal, the parties gave conflicting accounts about parts of the oral evidence given in the original proceedings. In the absence of a sound recording or transcript, in deciding whether the decision was against the weight of evidence we have only regard to the documentary evidence tendered in the Appeal. The parties agree that that material was the totality of the documentary material before the Tribunal in the original proceedings.

Decision under appeal

1. In its Reasons the Tribunal set out the following findings of fact: 1. The Byrnes did not deduct any amount from Mr Foster's wages for electricity charges before August 2014: Reasons at [5]. 2. On 5 December 2014 the Byrnes deducted from Mr Foster's wages an amount of $779.80 for electricity use for the period, June 2014 to September 2014: Reasons at [9]. That amount was calculated by subtracting from the electricity costs of the Homestead the $100 quarterly contribution required to be made by the Brynes ($879.79 - $100 = $779.80): Reasons at [9]. 3. On 29 December 2014 the Byrnes deducted from Mr Foster's wages an amount of $780.00, calculated by subtracting from the electricity costs of the Homestead for the period September 2014 to December 2014, the $100 quarterly contribution required to be made by the Brynes ($895 - $100): Reasons at [9]. 4. There was a small error in the amount deducted for electricity charges from Mr Foster's wages. In the deduction made on 3 December 2014, the amount payable by Mr Foster for was overestimated by one cent; in the deduction made on 29 December 2014 the amount payable by Mr Foster was underestimated by an amount of $15.03: Reasons at [11]. 5. As the overpayment made by Mr Foster for electricity costs for the June to September 2014 quarter (one cent) was less than the underpayment made in the subsequent quarter ($15.03), the Byrnes were not required to refund any money to Mr Foster: Reasons at [11] and [13].
2. For convenience, the key findings made by the Tribunal are set out below: Date of Deduction Total electricity charges for Wirrillah Electricity charges attributable to the Homestead Amt payable by Mr Foster for electricity use Amt deducted from Mr Foster's wages 3/12/2014 $1700.41 $879.79 $779.79 $779.80 29/12/2014 $1822.66 $895.03 $795.03 $780

Was the decision against the weight of evidence?

1. In deciding whether, as Mr Foster contends, the decision under appeal was against the weight of evidence, it is necessary to examine a number of key findings on which the decision rests: 1. Prior to August 2014 no deductions for electricity costs were taken from Mr Foster's wages. 2. Mr Foster was given draft pay advice forms for wages paid on 3 and 29 December 2014. Each contained errors. Neither reflected the amount actually deducted from Mr Foster's wages for electricity use. Mr Foster was subsequently given "correct pay slips" which contained the amounts actually deducted for electricity use: Reasons at [7], [10], [12]. 3. One of the three electricity meters located on the property, Meter 31938 recorded the electricity usage of the Homestead. The other two recorded the electricity consumed by other parts of the property. The amount deducted from Mr Foster's wages on 3 and 29 December 2014 for electricity use corresponded to the amount of electricity use recorded by Meter 31938 for the relevant Origin Energy billing periods.
2. Each of these findings was central to the decision made by the Tribunal. It follows that if one was against the weight of evidence, the decision would be against the weight of evidence.

Finding 1: That no deductions were made for electricity use before August 2014

1. In his Application to NCAT, Mr Foster claimed that he was unable to estimate the amount deducted from his wages for electricity use because he had not received "the majority of my payslips" and "copies of all power bills". He estimated however that just under $10,000 had been deducted from his wages, covering the period October 2013 to December 2014.
2. In support of the contention that Finding 1 was against the weight of evidence, Mr Foster relies on: 1. Screen shots of a series of text messages apparently exchanged between his wife and Mrs Byrnes throughout September and October 2013 which refer to the Fosters' move to Wirrillah. 2. A table, apparently prepared by Mrs Byrnes, listing the deductions taken from Mr Foster's wages throughout the period, 15 August 2013 to 11 September 2014 (the Table). The Table lists seven deductions totalling $4497.46. 3. Copies of two electricity accounts issued by Origin Energy to the Brynes for the billing periods spanning mid-September 2013 to mid-March 2014. 4. A copy of the initial contract of employment issued to Mr Foster by the Partnership dated 20 May 2013, which stated that on the departure of Luke Smith [apparently Mr Foster's predecessor], Mr Foster would be provided with the use of the Homestead. 5. An email from Luke Smith to Mr Foster stating that he moved out of "Wirrillah House" on or about 22 August 2013 and he understood that the Fosters moved in "straight away". 6. A statutory declaration prepared by a family friend stating that she had stayed with the Fosters at "Wirrillah hut" in August 2103 and at the Homestead in February 2014. 7. A letter from Mrs Byrnes to Mr Foster dated 8 May 2014, asking for an Origin Energy account (4/4/14) mistakenly placed in his "staff envelope" to be returned. 8. A statutory declaration dated 23 July 2015 in which Mr Foster declared that he had not seen "the letters provided for the NCAT hearing on 21/7/15 until the 20/7/15". [It is unclear whether the reference to "the letters provided for the NCAT hearing" is a reference to the letter from Mrs Byrnes referred to above and the letters to the same effect dated 14 May 2014 and 1 August 2014, the letters relating to the alleged draft pay slip issued in early December 2014 (see [34] of these Reasons), or both.]

Consideration

1. The Tribunal was required to be satisfied to the civil standard, that is, on the balance of probabilities that, as claimed by Mr Foster, deductions for electricity commenced before August 2014 (and other facts in issue).
2. Before the Tribunal was conflicting evidence about: (i) when "the occupation of the House commenced", and (ii) when the deductions for electricity use commenced. The Tribunal decided the former did not need to be determined because "the evidence was that no deduction for electricity was made before August 2014": at [5]. While not expressly addressed, it can be inferred from the Reasons that the Tribunal found the first deduction was made on 3 December 2014, being for electricity usage for the billing period June 2014 to September 2014.
3. The weight of documentary evidence appears to support Mr Foster's claim that he and his family commenced residing in the Homestead in about September 2013. However the evidence about when the deductions for electricity use commenced is more equivocal. Neither party adduced any direct documentary evidence in support of their respective claims. Therefore the task the Tribunal was required to undertake was to evaluate the evidence as a whole, and ask whether it supported the drawing of the inference that, as claimed by Mr Foster, deductions commenced before August 2014.
4. Mr Foster's claim that deductions for electricity use commenced in 2013 is not assisted by the pay advice records on which he relies, as the few pre-dating August 2014 containing entries for deductions, provide no information about the reason those deductions were made. As the Byrnes point out, throughout the period Mr Foster was engaged at Wirrillah, deductions were made from time to time for items other than electricity usage. For example, under the second contract of employment, deductions were made for a "subsidised rental fee" of $100 per week.
5. Similarly, the Table does not assist Mr Foster because while it reveals that deductions were taken from his wages before August 2104, apart from the word "fuel" written in hand next to the entry for 2 January 2014, it provides no information about the reason for those deductions.
6. Before the Tribunal were different explanations for why Mr Foster had been given copies of the Origin Energy accounts for the period September 2013 to March 2014. The Byrnes point to the correspondence from Mrs Byrnes to Mr Foster stating that those accounts had been given to Mr Foster by mistake; Mr Foster, on the other hand claims that that correspondence was a fabrication. While not expressly addressed, it is implicit from its Reasons that the Tribunal rejected Mr Foster's contention about the inauthenticity of that correspondence.
7. While the evidence could not be described as overwhelming one way or another, nonetheless it was open to the Tribunal to find on the available evidence that, as claimed by the Byrnes, no deductions were made before August 2014. Applying the test formulated in Collins v Urban we are not persuaded that the evidence in its totality preponderates so strongly against the conclusion - that no deduction was made before August 2014 - was not one that a reasonable tribunal member could reach.
8. We are not persuaded that Finding1 was against the weight of evidence.

Finding 2: Mr Foster was given draft pay advice forms on 3 and 29 December 2014, showing deductions for electricity use which did not correspond to the amount actually deducted from his wages for such use

1. Before the Tribunal were two sets of conflicting pay advice forms, relating to the wages paid to Mr Foster on 3 December 2014 and 29 December 2014. The Tribunal accepted the Byrnes' claim that (i) by mistake they gave Mr Foster copies of draft pay advice forms for the wages paid on these dates, and (ii) in each, the stated figures for the electricity deduction was wrong. In addition, the Tribunal found that the Byrnes remedied these errors by subsequently issuing Mr Foster with the "correct pay slips" for the wages paid on 3 December 2014 and 29 December 2014. The Tribunal found that the deductions recorded in those pay slips, respectively, $779.80 and $780.00 correctly reflected the amount Mr Foster was liable to contribute towards electricity costs.
2. In the version of the pay advice form issued for wages paid on 3 December 2014, found by the Tribunal to be a draft (referred to in these reasons as the 3 December draft pay slip), under the heading "Deductions" was written in hand: $1700 June -Sept electricity acct. next one due for 12/9/14 $1362.66 to be deducted from next pay … $1362.66 due next pay Awaiting next electricity A/C 10/12/2014 Then check upon vacation for residual payment Origin Energy
3. In the pay advice form issued for the wages paid to Mr Foster on 3 December 2014, found by the Tribunal to be "the correct pay slip" (referred to in these reasons as the 3 December correct pay slip), under the heading "Deduction", was written: Homestead $200 Fuel $300 Power A/C $780 Remaining hut rental fees $420

1. In the document found by the Tribunal to be the "correct pay slip" for the wages paid to Mr Foster on 29 December 2014 (the 29 December correct pay slip), under the heading Deduction was written by hand: Power A/C - $780 Rent - $200 Livestock and hire - $98
2. In the document for the corresponding payment found by the Tribunal to be a draft, under the heading Deduction was written: House - $200 Electricity "as per sheet" $1822.66
3. In support of their claim that draft pay slips containing errors were issued to Mr Foster, the Byrnes relied upon: 1. A letter to Mr Foster dated 5 December 2014, in which Mrs Byrnes wrote that the pay slip issued on 3 December 2014, contained an error and the amount deducted for electricity use was $886.97. Apologising for any inconvenience, Mrs Byrnes wrote that the balance of the deduction, $818.53 was for "repayment back to the Wirrillah Partnership as per your agreement before commencing this [second] Employment Agreement". 2. A letter to Mr Foster dated 3 December 2014 from Mrs Byrnes advising that in the next pay the following amounts will be deducted: 1. $886.97 - electricity 2. $613.53 - accom, panel, hire panels for livestock & part repayment of salary payment…
4. In support of his claim that each of the draft pay slips correctly recorded the amount deducted for electricity use, Mr Foster relied upon a statutory declaration, dated 23 July 2015, in which he declared that he first saw the 3 December correct pay slip the day before the commencement of the hearing in the original proceedings. In addition, he claimed the amount recorded in each draft pay slip "matched his bank statements". He argued that it was simply implausible that he would have been given copies of draft pay advice forms.

Consideration

1. The Tribunal was required to decide whether, as claimed by the Byrnes, they gave Mr Foster draft and final pay slips for the wages paid on 3 and 29 December 2014, and, if so, which of those forms correctly recorded the amount actually deducted for electricity use.
2. With respect to the 3 December 2014 payment, the Tribunal had before it two irreconcilable claims: that made by the Byrnes that they gave Mr Foster both a draft and a final pay advice form and that made by Mr Foster that he first saw the 3 December correct pay slip during the NCAT proceedings. Neither party produced any independent evidence to corroborate their conflicting claims.
3. We cannot accept the submission made by Mr Foster that the decision was against the weight of evidence because each of the draft pay slips "correctly matched his bank statements" because, first, he did not produce any bank statements in the original proceedings or the Appeal, and second, in respect of the 3 December 2014 wage payment, the draft and the correct pay slips contained the same figure for net wages.
4. The hypothesis advanced by Mr Foster that the correct pay advice slips and Mrs Byrnes' letters of 3 and 5 December 2014 were fabrications designed to strengthen the Byrnes' claim that the amount deducted for electricity use was $779 not $1770.41, was not implausible. Nor was the claim made by the Byrnes that as a result of an administrative error Mr Foster had been given the draft 3 December 2014 pay advice slip. The Tribunal was required to choose between these two accounts. It preferred that proffered by the Byrnes. That finding was open to the Tribunal on the available evidence. We are not persuaded it could be described as being against the weight of evidence. In any event, Mr Foster bore the onus of proof. In a word against word situation such as this, with nothing to break the deadlock, Mr Foster was unable to discharge that onus.
5. With respect to the payment for wages made on 29 December 2014, there was no documentary evidence to support the Byrnes' claim that a draft pay advice form had been issued to Mr Foster by mistake. Likewise, there was no documentary evidence to support the claim made by Mr Foster during the appeal, that he first saw the 30 December correct pay slip after making the Application to NCAT.
6. It is unclear from its Reasons why the Tribunal rejected Mr Foster's fabrication hypothesis in respect of the deduction made from the wages paid on 29 December 2014. The answer may lie in the oral evidence. Whatever the reason the finding was open to the Tribunal on the available evidence because again it was a case of word against word with Mr Foster bearing the onus of proof, which he was unable to discharge.
7. The contention that Finding 2 was against the weight of evidence must be rejected.

Finding 3: The amount deducted from Mr Foster's wages on 5 and 29 December 2014 for electricity usage corresponded to the amount of electricity use recorded by Meter 31938 for the relevant period

1. Mr Foster does not dispute the evidence given by the electrician who installed the three electricity meters on Wirrillah. The Tribunal accepted that evidence. The electrician testified that one of the meters, Meter 31938, reliably recorded the amount of electricity consumed by the Homestead; the other two meters recorded the electricity consumed by other parts of the property.
2. Mr Foster concedes that the relevant Origin Energy accounts correctly record the electricity use attributable to Meter 31938. His challenge to Finding 3 is in fact a challenge to Finding 2, that is, that the amount actually deducted from his wages for electricity use reflected the amount stated to have been deducted in the draft not the final pay slips.
3. We are not persuaded that Finding 3 was against the weight of evidence.

Conclusion

1. We are not persuaded that the three central findings of fact, or the ultimate decision made by the Tribunal, were against the weight of documentary evidence before the Tribunal. It is a matter of speculation whether, had additional or different material been available to the Tribunal, the same decision would have been reached. As we are not persuaded that the decision was against the weight of evidence, then we must refuse leave to Mr Foster to appeal the decision.

Can an order for costs be made?

1. The Byrnes seek their costs in the Appeal. They contend that the grounds of appeal raised no error of law and the Appeal was completely unmeritorious. They assert that at the very least they should receive their costs for the first day of the Appeal, which they assert was adjourned because of Mr Foster's failure to serve the three bundles of documents he filed with NCAT in late October 2105 (the Documents).
2. Mr Foster disagrees that the Appeal lacked merit. We will return to consider his submissions about the Documents.
3. The power to award costs is conferred by s 60 of the NCAT Act. The general rule created by s 60 of the NCAT Act is that each party to proceedings is to pay their own costs (s 60(1)). An Appeal Panel may order costs "only if satisfied that there are special circumstances warranting an award of costs (emphasis added)" (s 60(2)). Section 60(3) sets out a non-exhaustive list of factors that may be taken into account in deciding whether there are special circumstances warranting an award of costs: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. ...
4. The term "special circumstances" is not defined in the Act. It has been interpreted to mean circumstances that are out of the ordinary but not necessarily extraordinary or exceptional. The discretion to award costs must be exercised judicially having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs. (See eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [23]-[31].)
5. We must decide whether the factors relied upon by the Byrnes separately, or in combination, establish special circumstances warranting an award for costs in the appeal.
6. The Byrnes' submission that special circumstances are established because the grounds of appeal did not disclose a question of law must be rejected. An appellant is not required to identify a question of law before making an appeal to NCAT. With the leave of the Appeal Panel an appeal can be made "on any other grounds": s 80(2)(b) of the NCAT Act.
7. Nor can we accept the argument made by the Byrnes that the appeal was "entirely unmeritorious". This was not a case where there was an absence of any evidence which supported the appellant's claim that the decision under appeal was against the weight of evidence. Nor could it be described as a case where the strength of the respondent's evidence was such that the ultimate decision was a lay-down misère.
8. The hearing on 20 January 2016 was adjourned because the Byrnes did not receive the Documents filed by Mr Foster with NCAT on 27 October 2015. At the hearing Mr Foster initially claimed he sent the material to the Byrnes by registered post but could not find the notification, which his wife may have misplaced. He later resiled from that claim, and stated that he sent the documents to NCAT to be forwarded to the Byrnes.
9. On 20 January 2016 the Appeal Panel directed Mr Foster to make enquiries and outline in writing the steps taken to provide the documents to the Byrnes. In a statutory declaration, dated 29 January 2016, Mr Foster wrote that he sent the documents to NCAT in an addressed envelope to be forwarded to the Byrnes or sent them directly to the Byrnes.
10. The explanation given by Mr Foster both at the first hearing and in his statutory declaration in our opinion, was unconvincing. There is nothing in the NCAT file to suggest that Mr Foster requested the Registrar to forward the Documents to the Byrnes or provided additional copies for that purpose. It appears from his statutory declaration that he has abandoned his earlier claim of misplacing the registered post notification. He did not explain on what basis he could be confident that he sent the Documents in one of the two methods nominated, but could not recall which method was used. We are not satisfied on balance that as claimed he sent the Documents to either NCAT or the Byrnes. We think the most likely explanation for the Byrnes not receiving the Documents is that Mr Foster failed to provide them to the Byrnes as required.
11. As a result of not receiving the Documents the hearing of the appeal listed for 20 January 2016 could not proceed. Both parties attended by phone and therefore it was not possible to rectify the problem by providing a short adjournment. Mr Foster was responsible for this adjournment. We find the prolonging of the appeal constitutes "special circumstances" such as to warrant the exercise of the power to award costs for the hearing on 20 January 2106 to the Byrnes.

Orders 1. Leave to appeal the Decision made by the Tribunal on 27 August 2015 is refused. 2. Mr Foster must pay the Brynes' costs thrown away on 20 January 2016, as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 August 2016