New Image Beauty Salons Pty Ltd v Dewar - [2011] QCATA 217

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
Uniform Civil Procedure Rules 1999

Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87, cited
Spain v Union Steamship Company of New Zealand Ltd (1923) 33 CLR 138, 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] QCATA 217
Decision Date: 12 August 2011

CaseChat Overview and Summary

New Image Beauty Salons Pty Ltd was the plaintiff, and the respondents were employees of the defendant, New Image Photographics, who were seeking unpaid commissions. The dispute was heard in the Queensland Civil and Administrative Tribunal (QCAT). The employees claimed that New Image Photographics had ceased paying them commission, amounting to $12,675.85. The entity did not respond to the claim, resulting in a default decision being entered by the registrar. The employees subsequently filed an application to set aside the default decision, which was heard by an Acting Magistrate. The Acting Magistrate declined to set aside the default decision.

The legal issues before the court were whether the correct entity was named as the respondent, whether the claim constituted a debt or a liquidated demand, and whether leave to appeal should be granted. The court examined whether the employees had named the correct entity as the respondent and if the claim was a debt or a liquidated demand. The court also considered whether leave to appeal should be granted, given the circumstances of the case.

The court found that the correct entity was named as the respondent and that the claim constituted a debt. However, the court declined to grant leave to appeal, noting that the employees had not appeared at the hearing and that they had not demonstrated any special circumstances that warranted an appeal. The court emphasised the importance of appearing at hearings and the need for applicants to demonstrate special circumstances if they wish to appeal a decision.

No further orders were made.

Orders