Gilbert v Molineux[2021] QCAT 176

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 28 August 2014 the respondent (`Molineux’) was employed as a salesman by Mackay Real Estate Pty Ltd (`MRE’). On 29 May 2017 he was summarily dismissed from that position for reasons that need not now be detailed.
2. [2]
   He then sought relief in the Fair Work Commission (`the Commission’), alleging that his dismissal was harsh, unjust or unreasonable.^[1] The Commission held that the dismissal was lawful, and rejected the application.^[2]
3. [3]
   On 15 February 2019 Molineux instituted a claim for debt in this tribunal (`the original application’), claiming $8,741.16 (including costs) for commission relating to the sale of a property at Sarina.^[3]
4. [4]
   The respondent named in the original application is the present appellant (`Gilbert’), not the MRE corporation.
5. [5]
   The original application came on for hearing at Mackay on 23 May 2019. There was no appearance by Gilbert, whereupon the tribunal entered default judgment against her in the amount of $8,806.45.
6. [6]
   On 2 August 2019 Gilbert applied to have the default decision set aside. That application was refused.^[4]
7. [7]
   On 23 August 2019 Gilbert filed an application for leave to appeal against the refusal to set aside, and, implicitly at least, against the judgment in default itself.^[5]
8. [8]
   The present position of the parties may be summarised as follows:

   1. (a)
      Gilbert (i) denies that Molineux is entitled to the commission claimed, (ii) asserts that the proper respondent to the original claim is MRE and not herself, and (iii) that, in the light of the Commission’s ruling, the claim is frivolous or vexatious.
   2. (b)
      Molineux (i) maintains his claim against Gilbert and (ii) seeks an order of the Tribunal transferring the matter to the Magistrates Court.

A jurisdictional issue

9. [9]
   There is a fundamental question that the unrepresented parties, understandably, have not raised. These proceedings were initiated in this Tribunal, and the subject decision was made here. But does this Tribunal have jurisdiction to entertain the claim?
10. [10]
    Where a court or tribunal is asked to deal with a matter that is not within its jurisdiction it may and indeed should raise the issue itself, although no party has done so.^[6] Agreement, silence or acquiescence cannot create jurisdiction where none exists.^[7] Courts are bound to take judicial notice of the limits of their powers. It would be a waste of time and resources to go through the motions of making a void decision^[8] that the judgment debtor is simply free to ignore.
11. [11]
    It is undisputed that, at all relevant times, Molineux was employed as a sales representative by the company known as Mackay Real Estate Real Estate Pty Ltd.
12. [12]
    Persons so employed are covered by an award made by the Fair Work Commission pursuant to the FWA (Cth), namely the Real Estate Industry Award 2020.^[9] The FWA contains comprehensive provisions for the enforcement of that award^[10] by the Federal Court, the Federal Magistrates Court and `eligible State or Territory Courts.<sup>[11]</sup> A `small claims procedure’ is provided by s 548.
13. [13]
    The phrase `eligible State or Territory Courts’ includes District, County or Local Courts, magistrates courts or any other State or Territory court^[12] prescribed by the FWA regulations.^[13] There is no regulation extending that definition to tribunals in general or to QCAT in particular.
14. [14]
    I conclude that the present action should have been commenced under the FWA, in a magistrates court. It follows that QCAT’s default decision made on 23 May 2019 is a nullity. The nullity cannot now be cured by transferring it to a court.

Is Gilbert the proper defendant?

15. [15]
    A second fundamental question is whether any action is available against the nominated defendant Gilbert? If not, the alleged cause of action does not exist, and once again the default decision of the Tribunal is void.
16. [16]
    It appears that Molineux selected Gilbert as the appropriate target because he had frequent dealings with her as a principal of MRE. In popular understanding such a person is often confused with the company that he or she effectively operates. But as a matter of law that is a misconception. Apart from special exceptions not now relevant^[14], the rule is that a corporation – even a `one man company’ is an artificial person quite separate and distinct from any `owner’^[15], manager or director associated with it.^[16] This principle has been castigated as `one of the greatest instruments of fraud ever invented’ but it survives as a necessity of modern economic life. If the alleged debt is owed by anyone, it is owed by the company, not Gilbert.
17. [17]
    In a letter from his own solicitor to MRE on 17 May 2017 Molineux is described as an employee of MRE.^[17] He describes himself in the same way in a document signed and filed by him on 22 January 2020. When he unsuccessfully sued his employer for wrongful dismissal in the FWA he correctly identified MRE as the proper defendant.^[18] When he attended a property sale in December 2015 he signed the contract form on behalf of MRE.^[19] As the FWA found, he `commenced employment with Mackay RE’ on 28 August 2014.^[20]
18. [18]
    Accordingly Molineux has no cause of action against Gilbert in these proceedings and the default decision against her must be set aside.

Resolution

19. [19]
    For the reasons given, QCAT has no jurisdiction in the matter raised by Molineux in Application numbered Q29/19 filed in Mackay on 15 February 2019.
20. [20]
    For the reasons given, the original application by Molineux discloses no cause of action against Gilbert.
21. [21]
    Accordingly leave to appeal should be granted, the appeal must be allowed, and the default decision entered against Gilbert on 23 May 2019 must be set aside. If enforcement proceedings are still pending in the Magistrates Court the Appellant may see fit to advise that court of the orders below.

ORDERS

1. Leave to appeal is granted.
2. The appeal is allowed.
3. The default decision made herein on 23 May 2019 is set aside.