Nemeth t/a Lockyer Valley Fencing v Barton
[2014] QCATA 290
•13 October 2014
| CITATION: | Nemeth t/a Lockyer Valley Fencing v Barton [2014] QCATA 290 |
| PARTIES: | David Nemeth (trading as Lockyer Valley Fencing) (Appellant) |
| v | |
| Nathan Isaac Barton (Respondent) |
| APPLICATION NUMBER: | APL309-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 13 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is granted, limited to the award of interest. 2. The appeal is allowed in part, by reducing the total amount awarded from $1,643.13 to $1,569.52, and amending the orders made herein on 11 June 2014 accordingly. |
| CATCHWORDS: | APPEALS – APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where contract of employment – whether claim for unpaid wages and interest within jurisdiction of QCAT – whether claim under an award made under the Fair Work Act 2009 (Cth) – where contract of compromise mediated by Fair work Ombudsman – whether an action upon such contract brought under Fair Work Act or common law – whether Tribunal erred in exercising jurisdiction – whether Tribunal should raise a jurisdictional issue ex mero motu – whether leave to appeal should be granted Building and Construction General On-Site Award 2010 (Cth) Alliance Security Australia Pty Ltd v House Secure Pty Ltd [2014] QCATA 89 |
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 (QCAT Act).
REASONS FOR DECISION
The present respondent (Barton) began this action as a minor civil dispute against the appellant (Nemeth) for the ‘enforcement of [a] contract made as per mediation with Fair Work Ombudsman’[1] (“the settlement”).
[1]Application for minor civil dispute filed 19 May 2014, Part C.
The settlement, copy of which is in evidence, was signed by Nemeth on 26 August 2013.
The settlement recites that Barton was engaged by Nemeth ‘from around 9 April 2013 until around 7 June 2013’, and that subsequently Barton complained to the Office of the Fair Work Ombudsman[2] that Nemeth underpaid wages due to him under the Building and Construction General On-Site Award 2010.
[2]Constituted by the Fair Work Act 2009 (Cth) ss 681 ff.
The settlement records the parties’ contract of compromise, whereby Nemeth agreed to pay to Barton the sum of $1,488.12.
Barton’s application to the Tribunal sought an award of $1,488.12 and $101.40 for filing fees – a total of $1,589.52.
On the appointed time for hearing (1.30 pm on 11 June 2014) Nemeth failed to appear. Nemeth now says that he was delayed en route, and arrived at the court house at approximately 1.40 pm, and was ‘subsequently informed’ that the matter had been decided in his absence.[3] According to the transcript, the hearing concluded at 1.45 pm. It does not appear than any urgent advice of the delay was sent to the court, and no application was made for reopening.[4]
[3]Submissions of Nemeth dated 25 August 2014 paragraphs 11, 12.
[4]QCAT Act ss 137, 138.
Barton told the Tribunal[5] that he had not been paid.[6] In the light of that evidence, Barton’s assurance that he had given Nemeth ‘the receipt [sic] and everything’[7] could reasonably (if not only) be interpreted as infelicitous evidence that he gave Nemeth the ‘invoice’ mentioned in paragraph 3.1 of the terms of settlement. Nemeth now says that he transferred the funds from the Commonwealth Bank to Barton’s account at some time on the day before the hearing,[8] that is, some nine or ten months after he signed the settlement contract. Barton does not dispute that, but says that the transfer was not instantaneous, as he uses a different bank.[9] In other words, at the time of judgment, the money was not in his hands, and he did not know it was on the way. Those were matters of fact for the primary Tribunal.
[5]In the present context “evidence” bears a non-technical meaning, and the Tribunal may inform itself without administering an oath: QCAT Act ss 28(3)(b), (c), 57.
[6]Transcript of hearing 11 June 2014 page 4 line 13; Barton’s submissions filed 30 July 2014 paragraphs 5 and 7.
[7]Transcript page 4 lines 16 – 18.
[8]Nemeth’s submissions filed 25 August 2014 paragraph 8.
[9]Barton’s submissions filed 30 July 2014 paragraph 5.
Upon proof of due notice of hearing the Tribunal (Ms Laing-Short and Mr Anthony JJP) proceeded to enter judgment for Barton in default of Nemeth’s appearance.[10] The amount awarded was the principal sum, a filing fee, and interest of $53.60.
[10]QCAT Act ss 92, 93.
Despite his payment of almost all of the judgment debt, Nemeth now seeks to have the primary judgment set aside, on grounds considered above, and on the basis that this Tribunal has no jurisdiction to enforce awards under the Fair Work Act. Leave to appeal is required.[11]
[11]QCAT Act s 142(3)(a)(i).
An application by Nemeth for a stay of judgment was refused on 15 August 2014.
In McGarry[12], and again in J F Hodge Pty Ltd (t/a Outback Refrigeration) v Brown,[13] I held that QCAT lacks jurisdiction to hear and determine claims to enforce awards under the Fair Work Act. I adhere to that opinion, particularly in view of Wilson J’s endorsement in Ervin v Smipat Pty Ltd (t/a L J Hooker Burleigh Heads).[14]
[12][2013] QCATA 32.
[13][2013] QCATA 36.
[14][2013] QCATA 153.
But this case is distinguishable. The present cause of action arises from a common law contract of compromise, as distinct from an industrial award. It matters not that the Fair Work Ombudsman, in aid of ‘harmonious, productive and cooperative workplace relations’,[15] filled the role of honest broker. As an ordinary claim in contract it falls within the jurisdiction of this Tribunal in minor civil claims. I note that the document in question concludes with this reminder: ‘These Terms of Settlement are governed by the laws of the applicable State or Territory in which the Complainant usually resides’.
[15]Fair Work Act s 682(1)(a).
Therefore, save in one minor respect, I can find no reasonably appellable error in the primary decision.
The minor exception concerns the award of interest. Barton’s initiating process[16] includes no claim for interest, and the terms of settlement make no provision for interest. The question of such an award was first raised at the hearing, by a member of the Tribunal.[17] In principle interest may be added to a judgment for a debt or liquidated claim,[18] subject to proper notice.[19] But here, in substance, the award of interest involved an amendment of the claim without re-service upon the respondent Nemeth. Such procedure amounts to a denial of natural justice, so far as the issue or issues not pleaded are concerned.[20] ‘Non-appearance ... at the trial does not allow [the other party] a free rein to amend’.[21] Insofar as natural justice is denied, jurisdiction is absent, and the court or tribunal is bound to take that point, whether or not the party affected does so.[22]
[16]Application for minor civil dispute filed 19 May 2014.
[17]Transcript page 5, lines 4 – 5.
[18]QCAT Act s 14.
[19]As is implicit in QCAT Rules r 10(2)(d)(i).
[20]Annamunthodo v Oilfields Workers’ Trade Union [1961] AC 945; QCAT Act s 28(3)(a).
[21]Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279 at 288 per Brennan J.
[22]Thorpe v Charles Sturt City Corporation (1999) 103 LGERA 395; Rail Corporation of NSW v Nebax Constructions [2012] NSWSC 6 at [35]; McGarry v Coates [2013] QCATA 32 at [6]; Nunn v Baker (1987) 518 So Jo 711 at 712; Alliance Security Australia Pty Ltd v House Secure Pty Ltd [2014] QCATA 89 at [8].
It follows that the Tribunal fell into error in awarding interest to Barton, but not otherwise. Leave to appeal will be granted, limited to that issue. The appeal will be allowed in part, by reducing the sum awarded by the amount of $53.61. The remainder of the judgment has already been satisfied.
ORDERS
Leave to appeal is granted, limited to the award of interest.
The appeal is allowed in part, by reducing the total amount awarded from $1,643.13 to $1,569.52, and amending the orders made herein on 11 June 2014 accordingly.
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