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

1. 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.

2. 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.

3. 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.

4. 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.

5. The MCD was set down for hearing at the Magistrates Court at Rockhampton at 2:30…