Gilbert v Molineux

[2020] QCATA 169

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Gilbert v Molineux [2020] QCATA 169

PARTIES:

CHERYL ELAINE GILBERT

(applicant/appellant)

v

BENJAMIN ROSS MOLINEUX

(respondent)

APPLICATION NO:

APL230-19

ORIGINATING APPLICATION NO:

MCDQ29/19 (Mackay)

MATTER TYPE:

Appeals

DELIVERED ON:

11 December 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Fitzpatrick

ORDERS:

1.   The time for filing the application for leave to appeal or appeal is extended to 23 August 2019.

2.   The decision made 23 May 2019 is stayed pending a final decision in the Appeal Proceeding.

3.   The application for leave to be represented is dismissed.

CATCHWORDS:

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, s550

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s58, s 131, s142(3), 143(3), s 143(5)

Ford v Thexton trading as Family Legal and Thexton Lawyers [2014] QCATA 180

JF Hodge Pty Ltd v Brown [2013] QCATA 36
Reeve v Hamlyn [2015] QCATA 133

The Pot Man Pty Ltd v Reaoch [2011] QCAT 318

REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented
APPEARANCES:	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

Background

1. 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…