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Gilbert v Molineux

Gilbert v Molineux

Case [2021] QCAT 176 29 April 2021

Jurisdiction

Res Judicata

Corporations Act 2001 (Cth) s 124

Fair Work Act 2009 (Cth) s 12

Macaura v Northern Assurance Co

Salomon v Salomon & Co Ltd

Administrative Law

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Gilbert v Molineux [2021] QCAT 176

PARTIES: CHERYL ELAINE GILBERT

(applicant)

v

BENJAMIN ROSS MOLINEUX

(respondent)

APPLICATION NO:

APL230-19

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

29 April 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes

ORDERS:

1    The application for leave to appeal is granted

2    The appeal is allowed

3    The default decision made herein on 23 May 2019 is set aside

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – minor civil claim – action for debt by employee – employee covered by award made under Fair Work Act 2009 (Cth) – whether QCAT has jurisdiction in such a case – whether employee has cause of action against manager or principal of employer company – where legal personality of company is material -whether default decision made by QCAT of any legal effect – leave to appeal granted and default decision set aside

Corporations Act 2001 (Cth) s 124

Fair Work Act 2009 (Cth) s 12, s 385, s 390, s 391, s 392, s 539, Part 4, Dictionary

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32

Alliance Security Australia Pty Ltd v House Secure Pty Ltd [2014] QCATA 89
Baxter v NSW Clickers Association (1909) 10 CLR 114
D’Agostino v Zandata Pty Ltd & Ors [2018] VSC 115
Ervin v Smipat Pty Ltd (t/a L J Hooker Burleigh Heads) [2013] QCATA 153
L J Hooker Stafford v Roberts [2020 QCATA 100

Lee v Lee’s Air Farming Limited [1961] AC 12

Macaura v Northern Assurance Co [1925] AC 619

McGarry v Coates [2013] QCATA 32
Marine Coatings of Alabama Inc v United States of America 1986) 792 F 2d 1565
Molineux v Mackay Real Estate Pty Ltd [2018] FWC 635
Nunn v Baker (1987) 518 So 2d 711
Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369
Prest v Petrodel [2013] UKSC 34
R v Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113
Rail Corporation of NSW v Nebax Constructions Australia Pty Ltd (t/a TrackSyde Constructions) [2012] NSWSC 6

Salomon v Salomon & Co Ltd [1897] AC 22

Thorpe v Charles Sturt City Corporation [1999] 103 LGERA 395 [1999] SASC 10

Yuan & Ors v O’Neill & Ors [2020] SASC 49

APPEARANCES & REPRESENTATION:

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

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.
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]
[1]Fair Work Act 2009 (Cth) (`FWA’) ss 385(b) 390-392.
[2]Molineux…

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 Gilbert v Molineux

Details

AGLC: Gilbert v Molineux [2021] QCAT 176
Case: [2021] QCAT 176
Decision Date

CaseChat Overview and Summary

Cheryl Elaine Gilbert sought a debt of $8,741.16 from Benjamin Ross Molineux in the Queensland Civil and Administrative Tribunal (QCAT). Molineux was employed as a salesman by Mackay Real Estate Pty Ltd, and the debt arose from a property sale. The Tribunal entered a default judgment against Gilbert when she failed to appear for the hearing. Gilbert then applied for leave to appeal against the refusal to set aside the default decision and against the judgment itself. The central issues were whether QCAT had jurisdiction over the claim and whether Gilbert was the appropriate respondent. The Tribunal found that the claim should have been brought under the Fair Work Act 2009 (Cth) in a magistrates court, not QCAT, and that the proper respondent was the employer company, not Gilbert. The Tribunal granted leave to appeal, allowed the appeal, and set aside the default decision against Gilbert. The appeal was allowed, and the default decision made on 23 May 2019 was set aside.

The primary issue before the Tribunal was whether it had jurisdiction to hear the claim. Molineux was employed under an award made by the Fair Work Commission, and the Fair Work Act 2009 (Cth) provides for enforcement of awards in specified courts. The Tribunal concluded that the claim should have been brought in a magistrates court, not QCAT, as QCAT was not included in the definition of eligible courts. Given this jurisdictional defect, the default decision made by QCAT was a nullity. The second issue was whether Gilbert was the proper defendant. The Tribunal found that Molineux had no cause of action against Gilbert because, as a matter of law, a corporation is a separate legal entity from its directors or employees. The debt, if any, was owed by the employer company, not Gilbert. Therefore, the default decision against Gilbert must be set aside.

In conclusion, the Tribunal found that it lacked jurisdiction to hear the claim, and the default decision against Gilbert was a nullity. The Tribunal granted leave to appeal, allowed the appeal, and set aside the default decision made on 23 May 2019. The Tribunal's orders included granting leave to appeal, allowing the appeal, and setting aside the default decision against Gilbert. If enforcement proceedings were pending in the Magistrates Court, Molineux was advised to inform that court of the Tribunal's orders.

Orders