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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Gilbert v Molineux  QCATA 169
CHERYL ELAINE GILBERT
BENJAMIN ROSS MOLINEUX
11 December 2020
On the papers
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – POINTS AND OBJECTIONS NOT TAKEN BELOW – WHEN ALLOWED TO BE RAISED ON APPEAL – OTHER MATTERS – LEGAL GROUND APPEARING ON EVIDENCE – where question as to whether Tribunal below lacked jurisdiction for decision – where decision made by default – where matter relates to commission earned in employment – overriding importance of jurisdictional matters in civil proceeding
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where questions as to jurisdiction of Tribunal below for claim – where decision filed in Magistrates Court of Queensland – where enforcement proceedings commenced
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where explanation for delay unsatisfactory – where party claims misapprehension of law caused delay – where party required to act in their own best interest – where decision made by default – where decision not made on the merits of the application below – where in interests of justice to determine jurisdiction to enter decision by default.
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AT TO GRANT OR REFUSAL – where stay is sought to preserve the subject matter of the appeal – where the subject matter is payment from the applicant to the respondent – where enforcement proceedings commenced in Magistrates Court – where decision below may be irregularly entered through want of jurisdiction
Fair Work Act 2009 (Cth), s 545, s 548, s 550
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 58, s 131, s 142(3), 143(3), s 143(5)
Ford v Thexton trading as Family Legal and Thexton Lawyers  QCATA 180
JF Hodge Pty Ltd v Brown  QCATA 36
Reeve v Hamlyn  QCATA 133
The Pot Man Pty Ltd v Reaoch  QCAT 318
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
- The history of this matter follows.
- (a)An Application for minor civil dispute was filed in the Mackay registry of this Tribunal on 15 February 2019 by the respondent, Mr Molineux, against the applicant, Ms Gilbert. Correspondence from Ms Gilbert to the Tribunal registry reveals that she is now known as Ms Cheryl Mulder. I will continue to refer to her as Ms Gilbert in this decision.
- (b)Mr Molineux sought payment of the sum of $7,834.75, being commission for the sale of certain real property where he acted as the agent. Mr Molineux was employed at the time of the sale as a real estate agent by Mackay Real Estate Pty Ltd ACN 159301541 (Mackay Real Estate). Mr Molineux asserts his entitlement to commission pursuant to his contract of employment with Mackay Real Estate and that the commission fell due for payment on 2 June 2017.
- (c)Mr Molineux’s employment was terminated by Mackay Real Estate on 29 May 2017.
- (d)Ms Gilbert was the licensed Principal of the Real Estate Agency conducted by Mackay Real Estate. Ms Gilbert was a Director of Mackay Real Estate until the company was de-registered on 26 November 2017.
- (e)On the material on the Tribunal file, the date of payment of the commission by the sellers is uncertain; however, it appears that the sellers of the property in question paid commission to Ms Gilbert after 20 August 2018, but in any event after Mackay Real Estate was de-registered.
- (f)Mr Molineux asserts that the sellers of the property paid the commission owing to the Principal of the real estate agency, Ms Gilbert.
- (g)A decision in default of appearance was granted against Ms Gilbert on 23 May 2019. Ms Gilbert received the decision on 3 June 2019. The decision was made an order of the Magistrates Court on 30 July 2019. Enforcement proceedings were set down for 24 September 2019.
- (h)An application to stay a decision was filed in the Tribunal on 2 August 2019. An order was made on 22 August 2019 by the visiting Magistrate sitting in the Tribunal, staying the decision pending an appeal.
- (i)When it was apparent no appeal had been filed, the stay order was vacated.
- (j)An application for leave to appeal or appeal was filed in the Mackay registry of this Tribunal on 23 August 2019.
- (k)On 28 August 2019, the Tribunal ordered that the stay order made on 22 August 2019 remain pending outcome of the appeal.
- (l)An application to set aside the default decision was filed on 2 August 2019. That application is noted by the visiting Magistrate sitting in the Tribunal on 22 August 2019, as ‘not heard or decided on this date’. The matter was adjourned, pending the outcome of the Tribunal Appeal.
- (m)On 28 April 2020 the Appeal Tribunal directed that the appeal proceeding be stayed, pending a determination of the application to set aside a decision by default in MCD20-19.
- (n)On 31 July 2020, a decision was made by the Tribunal at Mackay that the default decision of 23 May 2019 ‘is not set aside’ and the application was refused.
- (o)On 28 August 2020 Ms Gilbert advised the Appeal Tribunal she wished to continue with the appeal.
- Ms Gilbert has filed the following interlocutory applications in the appeal tribunal:
- (i)Application to extend time to file the application for leave to appeal or appeal, filed 6 January 2020.
- (ii)Application for leave to be represented by a non-lawyer, filed 23 August 2020.
- (iii)A further Application to stay decision, filed 3 September 2020.
- As part of the review of this matter for the purpose of determining the applications before the Appeal Tribunal, the following issues emerge:
- (a)The minor civil dispute application filed by Mr Molineux claims an amount of commission as an incident of his employment, said to have been agreed at 70% of the commission paid by the seller of the real property to the employer. This Tribunal has limited jurisdiction in relation to employment claims, depending on the source of the alleged entitlement. The Tribunal is not vested with jurisdiction to order payment of money owing under a fair work instrument such as the Real Estate Industry Award 2010. That jurisdiction rests with the Federal Court of Australia, the Federal Circuit Court of Australia or the District or Magistrates Courts of Queensland.
There is insufficient evidence before me to say whether Mr Molineux is award free and entitled to bring his claim in this Tribunal. That will be a relevant issue in the appeal.
The parties will need to address whether the Tribunal below ever had jurisdiction to determine the matter because of the operation of the Fair Work Act 2009 (Cth).
If the Tribunal did not have jurisdiction, the decision in default of appearance was irregularly entered and is liable to be set aside.
- (b)Relevant to Mr Molineux’s claim for recovery of commission is whether Ms Gilbert is the appropriate respondent or whether he ought to have sought re-instatement of the de-registered company which was his employer. If Mr Molineux is seeking to engage s 550 of the Fair Work Act 2009 (Cth), as an accessory, this Tribunal does not have jurisdiction to deal with such a claim.
Interlocutory applications filed by Ms Gilbert
Application for an extension of time to file the application for leave to appeal or appeal
- In relation to Ms Gilbert’s application for an extension of time to file the application for leave to appeal, Ms Gilbert filed her application for leave to appeal or appeal some 53 days after the appeal period expired.
- I do not consider the applicant’s explanation of delay to be satisfactory. The applicant says that she thought the Tribunal registry was reviewing the matter because she told the registry that proceedings had been commenced against the wrong respondent and for a wrong amount. Further she was confused about the appeal process. These submissions are too vague and unsubstantiated to be accepted. A party to proceedings has a responsibility to conduct matters in their own best interest, and not to ignore service of proceedings and clear notices on proceedings as to time limits and rights of appeal. It is also not prudent to rely on untrained registry staff for legal advice, which is not and cannot be given, if that is indeed what occurred.
- As to the merits of the application, it is important to note that the application for leave to appeal or appeal is not made against a decision heard on its merits. The application relates to a decision by default. The application in its grounds filed at this stage of the proceeding relates to the merits of the matter which were not in fact heard by the Tribunal below. The relevant consideration for an Appeal Tribunal is whether the decision by default was irregularly entered.
- To my mind this is a critical issue. The Appeal Tribunal is clothed with sufficient jurisdiction to determine whether the Tribunal below had jurisdiction to deal with the application and to then decide whether the decision by default was irregularly entered.
- In circumstances where there is a risk that the decision the subject of the appeal was irregularly entered it is in the interests of justice that the question is resolved. The question is sufficiently important to outweigh the prejudice to Mr Molineux in further delaying the matter.
- For that reason, an extension of time is granted to the applicant to file her application for leave to appeal or appeal to 23 August 2019.
Application to stay a decision
- The decision has been made an enforceable money order of the Magistrates Court of Queensland, pursuant to s 131 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). The existence of an unsatisfied money order triggers the operation of Chapter 19 of the Uniform Civil Procedure Rules in relation to enforcement of money orders. This Tribunal does not have any statutory power to make an order affecting the money order made by the Magistrates Court or any enforcement proceedings in that Court, however, the Appeal Tribunal may in its discretion make an interim order staying the decision below which will form part of the Tribunal’s record.
- The applicant may seek a stay of enforcement proceedings in the Magistrates Court by filing an application in that Court. If a stay is made by this Appeal Tribunal the stay may be a relevant consideration for the Magistrate hearing the matter.
- The applicant may think she is able to point to the stay made on 28 August 2019 however, a question arises as to the competence of the Tribunal below to make a stay order in the appeal proceeding.
- For that reason, I will consider the stay application filed 3 September 2020.
- Ms Gilbert gives no grounds for her stay application other than that an appeal has been filed.
- As with the application for extension of time to file the application for leave to appeal or appeal, the applicant has not demonstrated good grounds for the order she seeks, however, the relevant concern for the Appeal Tribunal is that the decision below may have been irregularly entered, and may be of no force. That obviously infects any enforcement proceedings. It is in the interests of justice that the question be determined. For that reason, the balance of convenience favours the applicant.
- Accordingly, I order a stay of the default decision made on 23 May 2019.
Application to be represented
- Finally, I do not grant the application for leave to be represented by Mr Payne because he is not a legal representative and the application reveals he has been a witness to events in question, potentially affecting his ability to assist the Tribunal in an objective way.
- Directions will issue to the parties to file material and submissions in relation to the Tribunal’s jurisdiction to deal with Mr Molineux’s application and whether the default decision was irregularly entered.
- I order that:
- The time for filing the application for leave to appeal or appeal is extended to 23 August 2019.
- The decision made 23 May 2019 is stayed pending a final decision in the Appeal Proceeding.
- The application for leave to be represented is dismissed.
Application for Leave to Appeal or Appeal filed 23 August 2019, attachment H.
Fair Work Act 2009 (Cth), s 545, s 548; see also JF Hodge Pty Ltd v Brown  QCATA 36; Ford v Thexton trading as Family Legal and Thexton Lawyers  QCATA 180
QCAT Act, s 143 sub-ss (3) & (5).
The Pot Man Pty Ltd v Reaoch  QCATA 318, , .
- Published Case Name:
Gilbert v Molineux
- Shortened Case Name:
Gilbert v Molineux
 QCATA 169
11 Dec 2020