Nemeth t/as Lockyer Valley Fencing v Barton
[2014] QCATA 222
•15 August 2014
| CITATION: | Nemeth t/as Lockyer Valley Fencing v Barton [2014] QCATA 222 |
| PARTIES: | David Nemeth t/as Lockyer Valley Fencing (Applicant/Appellant) |
| v | |
| Nathan Isaac Barton (Respondent) |
| APPLICATION NUMBER: | APL309 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 15 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – STAY – where claim on settlement agreement – where appeal on grounds claim related to employment – where appeal on grounds tribunal had no jurisdiction – where most of debt paid - whether grounds to grant stay Commissioner of Taxation (Cth) v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220 |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
Mr Barton worked for Mr Nemeth. In August 2013, the parties resolved a dispute by signing terms of settlement. Mr Barton had to provide Mr Nemeth with an invoice and Mr Nemeth agreed to pay that invoice.
On 19 May 2014, Mr Barton filed an application for payment of the invoiced amount. The tribunal ordered accordingly.
Mr Nemeth wants to appeal that decision. He also asked for a stay of the decision pending the outcome of the appeal.
This tribunal can stay a decision pending appeal[1]. The normal rule is that a party is entitled to the ‘fruits’ of the litigation, a phrase which typically includes a judgment.[2] While it has been suggested that an applicant for a stay must establish ‘special circumstances’[3] before an order will be made, it has also been said that the discretion is unfettered and that the applicant must demonstrate a basis for a stay, with particular emphasis upon such matters as the balance of convenience, and the competing rights of the parties.[4]
[1]QCAT Act s 145(2).
[2]Commissioner of Taxation (Cth) v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220 at 222-3 per Dawson J.
[3]JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255 at 258.
[4]Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-5.
There are two grounds for leave to appeal. The first is that the tribunal has no jurisdiction. Mr Nemeth argues that Mr Barton’s claim is for unpaid wages and the tribunal is not a relevant court for that purpose[5]. Although I do not need to decide the appeal in considering a stay, I am not persuaded that Mr Nemeth has a good arguable case. The terms of settlement refer to an invoice, which is unusual in an employer/employee relationship. Mr Barton is claiming on a settlement agreement, not an employment agreement. The recent decision of Ford v Thexton trading as Family Legal and Thexton Lawyers[6] indicates that the tribunal does have some, limited, jurisdiction for wage claims.
[5]Ervin v Smipat Pty Ltd t/as L J Hooker Burleigh Heads [2013] QCATA 153.
[6][2014] QCATA 180.
The second ground of appeal is that Mr Nemeth paid Mr Barton’s claim prior to the hearing. Mr Barton agrees with that but says that he did not know the debt had been paid prior to the hearing. Mr Barton acknowledges that only interest is outstanding. Mr Nemeth could have produced evidence of payment to the tribunal at the hearing but he did not. In fact, Mr Nemeth didn’t appear at the tribunal hearing at all. What he really wants is the order to be set aside because he failed to honour an agreement until Mr Barton forced him to the door of the tribunal.
There appears little utility in either the stay application or the appeal. The dispute is now resolved. Mr Barton agrees that he cannot enforce the tribunal’s order to obtain double payment. There are no special circumstances which suggest I should exercise my discretion in Mr Nemeth’s favour.
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