New Image Beauty Salons Pty Ltd v Dewar
[2011] QCATA 217
•12 August 2011
| CITATION: | New Image Beauty Salons Pty Ltd v Dewar and Anor [2011] QCATA 217 |
| PARTIES: | New Image Beauty Salons Pty Ltd (Applicant/Appellant) |
| v | |
| Mr Craig Dewar Ms Manuela Dewar (Respondents) |
APPLICATION NUMBER: APL161-11
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President |
DELIVERED ON: 12 August 2011
DELIVERED AT: Brisbane
ORDERS MADE: 1. Leave to appeal is granted;
2.Appeal allowed;
3.Set aside the Decision by Default entered on 1 February 2011;
4.Also set aside the Decision of 14 April 2011 and order, instead, that:
a. New Image Beauty Salons Pty Ltd be joined as a party to the proceeding;
b. Judgment be entered for Manuela Dewar against New Image Beauty Salons Pty Ltd in the sum of $285.98;
c. Judgment be entered for Craig Dewar against New Image Beauty Salons Pty Ltd in the sum of $2,960.02.
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – APPLICATION TO SET ASIDE DECISION BY DEFAULT – where the respondents’ employer stopped paying them commission so they filed an application in QCAT’s Minor Civil Disputes jurisdiction claiming $12,675.85 in unpaid commission from ‘New Image Photographics’ – where that entity did not file a response to the claim so the registrar entered a decision by default – where the respondent filed an application to set aside the decision by default – where the respondent did not appear at the hearing – where the Acting Magistrate declined to set the decision aside – whether correct entity as respondent – whether debt or liquidated demand – whether leave to appeal should be allowed Queensland Civil and Administrative Tribunal Act2009, ss 3(b), 51 Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr and Mrs Dewar worked on commission in glamour photography, styling clients and taking photographs. Their employer stopped paying commission in November 2010 so they filed an application in the Minor Civil Disputes jurisdiction of the Tribunal, claiming $12,675.85 against New Image Photographics. That entity did not file a response to the claim so the registrar entered a decision by default.
New Image Beauty Salons Pty Ltd filed an application to set aside the decision by default[1] but did not appear at the hearing of that application. An Acting Magistrate, sitting as a QCAT Ordinary Member in the Tribunal’s Minor Civil Disputes jurisdiction, declined to set the decision aside.
[1] QCAT Act, s 51.
New Image Beauty Salons Pty Ltd has applied for leave to appeal the learned Magistrate’s decision on the grounds that Mr and Mrs Dewar’s case is ‘not right’ and New Image’s failure to appear at the hearing of the application to set aside the decision by default was due to some error on the part of the registry.
Because this is an appeal from a decision of the Tribunal in its Minor Civil Dispute jurisdiction, leave is necessary. Leave to appeal will ordinarily 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?
There was obviously a miscommunication between New Image and the Tribunal that prevented the company’s appearance at the hearing. The transcript records that the Acting Magistrate attempted to telephone New Image Beauty Salons three times.[2] New Image says that it tried a number of times to contact the Tribunal and, at one point, was told that the Tribunal was running behind time but that it would ‘call back when it was our turn’.
[2] Transcript page 6, lines 27-29; page 7, lines 13-14.
Notwithstanding New Image’s failure to attend the hearing, the learned Acting Magistrate had an obligation to consider the material before him. There are four obvious reasons why New Image’s application to set aside the decision by default should be allowed.
At the hearing, the learned Acting Magistrate questioned whether New Image Beauty Salons had any ability to bring the application to set aside the default judgment against it. The learned Magistrate commented on the fact that New Image Beauty Salons was not the named respondent.[3] He also took note of Mr and Mrs Dewar’s confusion about the correct entity, and whether it was a company or a trading name.[4]
[3] Transcript page 8, lines 14-19; page 11, lines 7-11.
[4] Transcript page 7, lines 37-44; page 8, lines 5-12.
Unfortunately, the Acting Magistrate did take notice of the fact that the contract annexed to the application to set aside the decision was a contract between Mrs Dewar and ‘New Image Beauty Salons’. A simple, and free, ASIC search shows that New Image Beauty Salons is not the same entity as New Image Photographics. Mrs Dewar has no apparent right of action against New Image Photographics.
The learned Acting Magistrate did not have a copy of the contract that Mr Dewar signed; therefore he was unable to make a decision about the correct entity. This Appeal Tribunal is in no better position, although, in its application for leave to appeal, New Image Beauty Salons asserts that Mr Dewar’s contract was with that entity rather than New Image Photographics.
An examination of the contract between Mrs Dewar and New Image Beauty Salons would have alerted the learned Acting Magistrate to the fact that there were two separate claims, from two different applicants. Mrs Dewar’s right to commission was limited to 10%. Therefore a decision that [the correct entity] should pay Mr and Mrs Dewar jointly the full amount claimed was clearly incorrect. While the claim clearly defines the commission accrued as $8,115.60 to Mrs Dewar, and $10,793.75 to Mr Dewar, the calculation of the claim thereafter lacks particularity. The learned Magistrate could not have determined the actual commission payable to each of the applicants.
The claim includes a deduction for a ‘training advance wage’ for both Mr and Mrs Dewar but the amount is not explained in any of the material provided to the learned Magistrate. It also includes an additional $427 for the cost of a return ticket to Tasmania. Nowhere in the contract does New Image Beauty Salons agree to pay for travel costs. In fact, clause 3 of the contract, which states that Mrs Dewar is self-employed, suggests that she should bear her own expenses of carrying out the contract.
New Image has drawn the Tribunal’s attention to clause 5 of the contract which provides that Mr and Mrs Dewar are not entitled to be paid commission until the amount due from the customer has been received in cash or cleared funds. In its application to set aside the decision by default, New Image provided the Tribunal with a copy of the ‘December rollover’ which, apparently, showed that not all of the amounts on which Mr and Mrs Dewar claimed commission had been paid.
The learned Acting Magistrate specifically acknowledged that Mr and Mrs Dewar did not know whether or not all of the invoices had been paid[5] but determined that this was no reason to set aside the decision by default because New Image Beauty Salons had the onus of proof, and it had not discharged that onus.
[5] Transcript page 12, lines 28-30, 34-37, 41-42.
In considering an application to set aside a decision by default, the Tribunal has adopted the same test as the matters to be taken into account in setting aside a default decision under the Uniform Civil Procedure Rules 1999.[6] An application of those factors does not require New Image Beauty Salons to prove, on the balance of probabilities, that it has a defence to Mr and Mrs Dewar’s claim; it simply requires New Image Beauty Salons to show a ‘prima facie defence on the merits’. New Image Photographics has a complete defence to the claim by Mrs Dewar. Based upon the ‘December rollover’ which, apparently, was provided to the learned Magistrate, New Image Beauty Salons had a defence for all but $3,246.00 of the claim.
[6] Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87 at [12].
Even though, on the material presented by Mr and Mrs Dewar, the Registrar’s decision by default appeared to be regularly entered, the additional material provided by New Image Beauty Salons demonstrates that a decision by default should not have been entered. Indeed, it is questionable whether Mr and Mrs Dewar’s claim was truly a debt or liquidated demand. While the amount due is ascertained by reference to a formula, because the precise calculation requires reference to New Image Beauty Salons’ payment records, it is not a formula that ‘… can be ascertained by calculation or fixed by any scale of charges, or other positive data …’.[7]
[7] Spain v Union Steamship Company of New Zealand Ltd (1923) 33 CLR 138.
The decision to enter a decision by default, and the decision of the learned Acting Magistrate not to set it aside, were both made in error. The errors were mixed errors of fact and law. In that circumstance, the Appeal Tribunal may only confirm or amend the decisions, or set them aside and substitute its own: QCAT Act, s 147.
Leave to appeal should be granted, the appeal should be allowed and the decision in default set aside. Because New Image Beauty Salons has admitted that some money is owing, and Mr and Mrs Dewar have declined to file any response to the application for leave to appeal, it is appropriate to make further orders in order to deal with the proceeding in a way that is fair, just, economical, informal and quick.[8]
[8] QCAT Act, s 3(b).
The further orders, reflecting what the appellant admits is, at least, owing should be:
a) New Image Beauty Salons Pty Ltd be joined as a party to the proceeding;
b) Judgment for Mrs Dewar against New Image Beauty Salons Pty Ltd in the sum of $285.98;
c) And, judgment for Mr Dewar against New Image Beauty Salons Pty Ltd in the sum of $2,960.02.
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