Harris v Foxworth Pty Ltd - [2013] QCATA 133

CITATION:

Harris v Foxworth Pty Ltd [2013] QCATA 133

PARTIES:	Leslie Harris (Applicant/Appellant)
v
Foxworth Pty Ltd t/as Mango 4 Office Technology (Respondent)

APPLICATION NUMBER:

APL210-12

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President

DELIVERED ON:

17 April 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

Application for leave to appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where the applicant was employed by the respondent and paid in advance against future commissions to be earned – where the respondent brought proceedings after the applicant’s employment was terminated for money owing from advance payments – where the applicant failed to attend the hearing – where the Magistrate ordered the applicant to refund the respondent – where the applicant seeks to appeal that decision – where the applicant did not receive the notice of hearing – where r 37 of the Queensland Civil and Administrative Tribunal Rules 2009 provides a party must notify the principal registrar of changes to the party’s statement of address for service – where the applicant failed to notify the principal registrar – whether leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act 2009, s 57(1)(b), s 137, s 138

Queensland Civil and Administrative Tribunal Rules 2009, r 37, r 44(5), r 76, r 92

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

This dispute arose out of Mr Harris’s employment as a salesman at Mango 4 Office Technology (‘Mango 4’) between 18 October 2010 and 30 June 2011. According to Mango 4 he was, at his request and by arrangement, provided with fortnightly payments by way of advances against future commission, yet to be earned by him under his employment contract. The contract provided, Mango 4 says, that in the event of his employment ending he was obliged to repay the commission in full.
After Mr Harris’s employment ended in December 2011, Mango 4 began proceedings in the Minor Civil Disputes (‘MCD’) jurisdiction of the Queensland Civil and Administrative Tribunal (‘Tribunal’) claiming that although he had been paid $45,780.00 for commission in advance, he had only actually earned commission of $22,200.00 and was obliged to refund an overpayment of $23,580.00.
Mr Harris filed a Response in the MCD proceedings claiming that his ‘unpaid minimum employee entitlements’ (comprised of motor vehicle allowance, accrued annual leave and all other minimum employee entitlements) exceeded the amount claimed by Mango 4 and he should be ‘relieved from payment’ from the amount claimed by his former employer.
Relevantly, and for reasons which will become apparent, the address for notices he provided in that Response (filed on 23 January 2012) was 340 Fenlon Avenue, Frenchville, and his email address was recorded in his Response.
The MCD was set down for hearing at the Magistrates Court at Rockhampton at 2:30 pm on 20 March 2012. The Tribunal file shows that both parties asked for it to be deferred: Mango 4 because its relevant manager would be away on 20 March, and Mr Harris because Fair Work Australia (as it then was) and the Fair Work Ombudsman were still, he said, investigating his claims against Mango 4 of unfair dismissal, and under-paid wages and allowances.
Subsequently, the Deputy Registrar of the Magistrates Court at Rockhampton advised both parties that the matter would be adjourned, and both were later sent a notice of a new hearing time and date of 2:30 pm on 12 June 2012.
The Magistrates Court file contains an affidavit of service in which a Court officer swears that the notice was sent to Mr Harris by mail posted on 2 April 2012, at the address for service shown in his Response.
Mr Harris did not, however, appear at the hearing on 12 June and a Magistrate, sitting as a QCAT Member, ordered that he pay Mango 4 the sum of $23,884.50 within seven days. In light of the affidavit of service of notice of the hearing upon Mr Harris, the learned Magistrate reasonably believed that he was entitled to proceed in Mr Harris’ absence.[1]
[1]QCAT Act s 57(1)(b).
Subsequently Mr Harris did two things: he sought leave to appeal the decision and, also, applied for the proceedings to be reopened.
A party applying to reopen proceedings under s 138 of the QCAT Act must persuade the Tribunal that a ‘reopening ground’ exists. Section 137 of the QCAT Act defines ‘reopening ground’ to mean that a party who did not appear at a hearing had a reasonable excuse, or would suffer a substantial injustice if the proceeding was not reopened because significant new evidence had arisen, and that evidence was not reasonably available when the matter was heard and decided. Mr Harris’s reopening application was, however, out of time,[2] and was refused.
[2]QCAT r 92.
His application for leave to appeal repeats the matters set out in his original response and, otherwise, relies principally upon an allegation that he never received notice of the hearing date.
This Appeal Tribunal directed that the application for leave to appeal (and the appeal itself, if leave is granted) would be determined on the papers and the parties were ordered to exchange submissions.
Mr Harris’s submissions contained a large amount of material in which it is contended, in short, that he left the address of 340 Fenlon Avenue early in 2012 and moved to the Northern Territory and arranged for his mail to be re-directed. It appears that did not occur – and, hence, the notice of hearing sent by ordinary post never reached him.
The difficulty he confronts is that, unsurprisingly and not unreasonably, the QCAT Act and Rules place obligations upon parties involved in Tribunal proceedings to ensure that their address for service is current, and appropriate. Under r 76 a notice of hearing may be sent by written notice, as occurred here. Under r 44(5) the ‘approved form’ for a response of the kind filed by Mr Harris must provide for the inclusion of his statement of address for service. His response contained those particulars including the address at Frenchville, and an email address.
Under r 37, if a party to a proceeding wishes to change all or a part of that party’s statement of address for service it must notify the principal registrar and all other parties.
Mr Harris did not do that. Nor does he contend that he did. In his submissions he frankly admits that he had left the Frenchville address at least six months earlier. He does contend that he informed the Magistrates Court at Rockhampton of his change of address but there is nothing in the Court file to support that. Nor, although the Court file contains a large number of emails from him and his opponent, is there any communication from him after the first hearing date of 20 March 2012 was adjourned.
Mr Harris’s claims are also rendered less credible by emails to the courthouse showing that he knew of that adjournment, but never enquired about a new hearing date.
Mr Harris has been, with respect, the author of his own misfortune. His conduct in these proceedings exemplifies the need for parties in disputes of this kind to take what are, with respect, sensible and logical steps required under the Rules of the Tribunal to ensure that they are kept informed about developments in the proceedings in which they are involved.
Once it is understood that Mr Harris failed to do that – to take steps required under the QCAT Rules to keep the Tribunal informed of his address for service of documents, his application for leave to appeal must fail.
Greater sympathy might be extended to him were it not that the QCAT Rules incorporate practical requirements which, even to a non-lawyer, are plainly sensible and logical.
Mr Harris is also of course free to pursue, independently, proceedings he may believe he is entitled to bring against Mango 4 in respect of the allegations contained in his response, and application for leave.
The application for leave to appeal is refused.