Hemphill Plumbing Pty Ltd v Petrovic

[2010] QCATA 300

CITATION: Hemphill Plumbing Pty Ltd v Petrovic [2010] QCATA 300

PARTIES:	Hemphill Plumbing Pty Ltd (Applicant/Appellant)
v
Samual Petrovic (Respondent)

APPLICATION NUMBER:            APL170-11   

MATTER TYPE: Appeals

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON:   1 November 2011

DELIVERED AT:   Brisbane

ORDERS MADE:       Leave to appeal refused. 

CATCHWORDS: 

Minor Civil Dispute – representation – where respondent given leave to be represented in the minor civil dispute proceeding – exercise of discretion – whether discretion miscarried

Queensland Civil and Administrative Tribunal Act 2009, ss 43, 142(3)

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. Mr Petrovic has made a claim in the minor civil disputes jurisdiction against Hemphill for the recovery of wages.

1. The claim is defended.  Mr Petrovic applied to the Tribunal for leave to be represented by a Mr Law, who seems to be an industrial advocate.

1. The application was granted on 27 April 2011.  On 16 May 2011 Hemphill filed an application for leave to appeal and appeal that decision.  Leave to appeal is necessary.[1]

   [1] QCAT Act, s 142(3).

1. Since the application for leave to appeal was filed Hemphill has been placed under external administration.  An extract from the Australian and Securities and Investment Commission database shows that on 26 October 2011 a “Controller” was appointed.  The submissions from Mr Law, on behalf of Mr Petrovic, indicate that Hemphill has “entered into voluntary winding up” and a proof of debt has been lodged.

1. It seems clear that the company is now under external administration and this appeal, if leave were granted, nor the minor civil dispute proceeding can proceed without the leave of a Court[2], not QCAT.

   [2]        Corporations Act 2001 (Cth), ss 471B and 58AA.

1. Despite this procedural difficulty the application for leave must fail in any event. The granting of leave for representation under section 43 of the QCAT Act is a exercise of discretion by the Tribunal Member who made the decision. For leave to appeal to be granted the applicant must show that the exercise of discretion miscarried[3].  Nothing in the submissions filed by the applicant has identified any error on the part of the learned Member, it merely traverses reasons as to why the application should have been refused.

   [3]        House v R (1936) 55 CLR 499.

1. As no error has been identified, nor is any apparent, leave to appeal should be refused.