Kingsford Smith Airport Parking Pty Ltd v Maltby

[2013] QCATA 3

CITATION: Kingsford Smith Airport Parking Pty Ltd and Anor v Maltby [2013] QCATA 3

PARTIES:	Kingsford Smith Airport Parking Pty Ltd Russell Hatton (Applicants/Appellants)
v
John Charles Maltby (Respondent)

APPLICATION NUMBER: APL191-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 7 January 2013

DELIVERED AT: Brisbane

ORDERS MADE:

In respect of the application for leave to appeal brought by Kingsford Smith Airport Parking Pty Ltd, leave to appeal is refused.1.    

In respect of the application for leave to appeal brought by Mr Hatton:2.    

Leave to appeal is granted and the appeal is allowed.(a) 

The Tribunal’s decision of 7 June 2012 is set aside.(b) 

Mr Hatton must file and give to Mr Maltby a response to the minor civil dispute application Wynnum claim 6/12 by 31 January 2013.(c) 

The minor civil dispute application Wynnum claim 6/12 is remitted to the minor civil disputes jurisdiction for determination according to law.(d) 

CATCHWORDS:

Decision by Default – where application to set aside a decision by default dismissed – where particulars of the respondent/applicant’s claim did not disclose a cause of action against the applicant – where exercise of discretion miscarried

Queensland Civil and Administrative Tribunal Act2009, ss 50, 51, 142(3)

House v The King (1936) 55 CLR 499

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. Mr Maltby filed a minor civil dispute application in the Tribunal claiming $3,166.86 from ‘Mr Russell Hatton of Kingsford Smith Airport Parking’ for unpaid penalty rates.  The claim arises out of an investigation by the Fair Work Ombudsman as a result of a complaint made by Mr Maltby for non-payment of penalty rates, overtime, and meal breaks whilst employed by Kingsford Smith Airport Parking Pty Ltd.

1. The respondents to the application are named as Russell Hatton and in the alternate box on the application form is Kingsford Smith Airport Parking as the business name.  The particulars of the claim for $3,166.86 is ‘as per the attached report’ which is the report from the Fair Work Ombudsman, Mr Meecham attached to the application. 

1. Throughout that report reference is made to Kingsford Smith Airport Parking Pty Ltd as the employer of Mr Maltby and the entity liable for any claim for penalty rates etc resulting from Mr Maltby’s employment with that company as a coach driver.  The report also makes reference to an unsigned letter of termination by Kingsford Smith Airport Parking Pty Ltd and a PAYG payment summary dated 20 July 2011 provided by Kingsford Smith Airport Parking Pty Ltd.  No other documents were produced with the application or produced in the minor civil dispute proceeding.  On 15 February 2012 Mr Hatton was personally served with the application for minor civil dispute – minor debt at 767 Kingsford Smith Drive, Eagle Farm.  He was asked whether he was the Russell Hatton referred to in the application to which he replied ‘yes’. 

1. Mr Hatton, as a named respondent to the proceeding, did not file a response to the application. On 4 May 2012 Mr Maltby applied for a default decision against both Kingsford Smith Airport Parking ABN 381 4726 7230 and Mr Hatton, as he was entitled to do, under s 50 of the QCAT Act.

1. The delegate for the Principal Registrar, being satisfied that the application had been served and no response had been filed entered a default decision against Kingsford Smith Airport Parking and Russell Hatton for $3,536.53, which included costs and interest. 

1. On becoming aware of the default decision Mr Hatton filed an application to set the default decision aside under s 51 of the QCAT Act. The usual principles that apply in setting aside a default decision are that there be a satisfactory explanation of delay, the applicant has a defence on the merits and there is no prejudice to the other party. The reason for this is to ensure that in appropriate circumstances there is a proper hearing on the merits.

1. In support of his application to set aside the default decision Mr Hatton said he was not liable for the debt as he was never the employer of Mr Maltby.  He only acted in his capacity as a director of Kingsford Smith Airport Parking Pty Ltd and any debt that was owed to Mr Maltby was owed by the company and not him personally.  He further contends that Mr Maltby was aware that the company was responsible for the debt, which seems evident from the Ombudsman’s report. 

1. The application to set aside the default decision was considered by a Tribunal Member on 7 June 2012.  The application was dismissed.

1. Mr Hatton then filed an application for leave to appeal or appeal on 25 June 2012.  His grounds of appeal are the same as those that were put before the learned Member that the debt was owed by the company and not Mr Hatton personally.  The application is again confusing because the applicant is named as Kingsford Smith Airport Parking Pty Ltd and in the part dealing with representative details, Mr Hatton is named.  Directions issued by the Tribunal do not have Mr Hatton named as a party to the appeal.  Clearly this is wrong and I will proceed on the basis that the application of leave to appeal is also brought by Mr Hatton.

1. Because this is an appeal from a minor civil dispute matter leave to appeal is necessary.  Leave will only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

1. The consideration of whether to set aside a default decision is an exercise of discretion that will not be interfered with lightly.  To interfere it must be demonstrated that the decision maker did not take into account some material consideration or allowed some extraneous or irrelevant matter to guide or affect him.[1]  Although no reasons were given for dismissing the application to set aside the default decision it would appear that the learned Member failed to give sufficient weight to Mr Maltby’s own evidence in support of application against Mr Hatton.  The only evidence before the Tribunal is that the company was liable for the claim made by Mr Maltby and not Mr Hatton personally.  Not only is this evident in the report from the Fair Work Ombudsman, but there was a statement signed by Mr Hatton to this effect.  This established that there is a defence on the merits.

   [1]        House v The King (1936) 55 CLR 499 at 504-5.

1. The QCAT application form itself is confusing and may have led to the error.  In part A it doesn’t differentiate between identifying who are the proper respondents to the application.  In the decision by default both Kingsford Smith Airport Parking and Russell Hatton are named as respondents when clearly the only proper respondent to the claim, on the evidence produced by Mr Maltby should have been Kingsford Smith Airport Parking ABN 38 147 267 230.

1. Mr Maltby has filed submissions in the appeal but he does not address specifically the identity of the proper respondent to his claim.  He does of course make reference to the Fair Work Ombudsman’s decision and contests statements of fact made by Mr Hatton but the evidence seems to me to be overwhelming that Mr Hatton did not personally employ Mr Maltby and it is the employment which gives rise to the cause of action to recover unpaid employment entitlements mounted by Mr Maltby.

1. I am of the opinion that the discretion did miscarry in that the learned Member did not take into account a relevant consideration.  As this is an error of law, leave to appeal should be granted and the appeal allowed. 

1. It also follows that the decision by default should be set aside against Mr Hatton and the matter be remitted to the minor civil disputes jurisdiction for rehearing.

1. Insofar as this is also an appeal by Kingsford Smith Airport Parking Pty Ltd, the decision by default entered against it was regular and there is no basis to set it aside.  It follows from these reasons it is difficult to see how it has a defence on the merits and it has not purported to raise one.