ORDERS MADE: 1. The application for extension of time to file the application for leave to appeal and appeal is refused; and,
2. The application for leave to appeal and appeal is dismissed.

CATCHWORDS:

APPEAL – APPLICATION FOR EXTENSION OF TIME TO FILE APPLICATION FOR LEAVE TO APPEAL – APPLICATION FOR LEAVE TO APPEAL – where the respondent had made an application to recover wages – where the Tribunal ordered the payment of the sum owed – where the Applicant contends that the figures and calculations applied by the Tribunal were incorrect – where the Applicant did not file an application for leave to appeal within the statutory timeframe – whether the interests of justice are served by granting or refusing the application for extension of time sought

Queensland Civil and Administrative Tribunal Act2009, ss 32, 61, 142, 143

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APPEARANCES and REPRESENTATION (if any):

This proceeding was heard on the papers in the absence of the parties pursuant to section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

Judge Fleur Kingham

I have read the reasons of Ms Howard in draft and agree with the orders she proposes and the reasons for them.

Ms Howard, Member

Ms Ware applied to the tribunal to recover wages which she claimed were owing to her by Ms Benson. A Magistrate, sitting a Member of the Tribunal, heard the application on 7 June 2011. He ordered that Ms Benson pay the sum of $2,642.41 to Ms Ware and allowed two months for payment to be made.

Ms Benson filed an application for leave to appeal the Magistrate’s decision, together with an application for extension of time, on 24 November, 2011.

The grounds of appeal were specified in the following terms:

‘I brought (sic) a small coffee shop I was supplied with a wageline. wages which Ipayed (sic) by. Fair Work said I payed (sic) wrong.

It went to court the Judge said I never presented a spread sheet. I was not told what he excepted (sic). I now have what he asked for.’

Ms Benson asks the tribunal to consider the matter again, indicating that Fair Work provided three different views. Further, she suggests that the order made should be adjusted, as the Magistrate declined the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Benson v Ware

Details

AGLC: Benson v Ware [2012] QCATA 24
Case: [2012] QCATA 24
Decision Date: 22 February, 2012

CaseChat Overview and Summary

In Benson v Ware, the Applicant, Benson, sought an extension of time to file an application for leave to appeal against an order of the Fair Work Commission. The order required the Respondent, Ware, to pay Benson a sum of money following a claim for unpaid wages. Benson argued that the figures and calculations applied by the Commission were incorrect. The application for leave to appeal was not filed within the statutory timeframe. The court was required to determine whether the interests of justice would be served by granting or refusing the extension of time.

The court considered the statutory framework governing appeals and the discretion available to grant an extension of time. It examined the reasons why Benson had not filed the application within the required period and whether there was any justification for the delay. The court also assessed the merits of Benson's argument that the figures and calculations applied by the Commission were incorrect, and whether this was a significant error warranting an appeal. The court weighed the potential prejudice to Ware if the extension were granted against the importance of allowing Benson to challenge what he believed was an incorrect decision.

After considering the evidence and arguments presented, the court concluded that the interests of justice would not be served by granting the extension of time. The court found that the delay in filing the application was not adequately justified and that the merits of the case did not strongly support an appeal. The court also determined that the potential prejudice to Ware outweighed the benefits of allowing the appeal. Therefore, the application for extension of time was refused.

No appeal was permitted, and the order of the Fair Work Commission remained in place.

Orders