Swag Camper Trailers Pty Ltd v Baird
[2023] QCATA 34
•27 March 2023
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Swag Camper Trailers Pty Ltd v Baird [2023] QCATA 34
PARTIES:
SWAG CAMPER TRAILERS (appellant)
v
DAVID BAIRD (respondent)
APPLICATION NO:
APL061-22
ORIGINATING APPLICATION NO:
MCDO 108 of 2021
MATTER TYPE:
Appeals
DELIVERED ON:
27 March 2023
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member PG Stilgoe OAM
ORDERS:
1. Leave to rely on fresh evidence is refused.
2. Leave to appeal is refused.
CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – appellant submits he was not properly prepared for hearing due to jurisdictional challenge – where appellant did not detail their defence at the original hearing – whether the applicant should be given leave to appeal and leave to rely on fresh evidence?
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 137, 138 & 142(3)(a)(i).
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404.
Emmons Mt Gambia Pty Ltd v Specialist Solicitors Network Pty Ltd [2005] NSWCA 117.
Pickering v McArthur [2005] QCA 294.
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
David Baird was an employee of Swag Camper Trailers between August 2019 and August 2021. His employment contract contained a clause which stated:
You will be entitled to a sales commission of 1% of the total net value of each Camper you sell less GST, Dealer Delivery and Registrations costs.
…
You will receive a further .75% bonus for each sale achieved over your sales target.
When Mr Baird ceased employment with Swag, he did not receive $24,105.96 in commission and bonus payments to which he claims he was entitled. He applied to QCAT in its minor civil dispute jurisdiction for payment of his bonus.
At that hearing, Swag believed that the Tribunal did not have jurisdiction to hear the matter due to finalised proceedings before the Fair Work Commission. Therefore, they did not prepare their case or provide any evidence about Mr Baird’s claim for commission. The learned Adjudicator found the Tribunal did have jurisdiction to hear the matter and decided that Swag was to pay Mr Baird the full $24,105.96.
Swag wants to appeal that decision. Because this is an appeal from a decision of the Tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
Swag says the Tribunal erred in finding Mr Baird was entitled to commission for a sale in circumstances where Mr Baird had not prepared the camper for sale and/or not delivered the camper to the customer. Swag wants to rely on evidence that they would have submitted for the original hearing but for their belief that QCAT had no jurisdiction.
The Appeals Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.[3] Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Swag have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[4]
[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 137, 138.
[4]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
The evidence was available at the time of the hearing. It was not available to the Tribunal because Swag decided not to file it.
Swag’s evidence goes to Mr Baird’s entitlement to be paid commission. It is clear that this fresh evidence, if accepted, has the potential to have an important impact on the result of the case. The evidence is credible as Mr Mathieson, from Swag, provided sworn evidence which is supported by contemporaneous documents.
Swag chose not to file this evidence for the initial hearing. That choice backfired. The application for leave to file fresh evidence is refused.
Swag relies on Emmons Mt Gambia Pty Ltd v Specialist Solicitors Network Pty Ltd[5] to support its contention that Mr Baird was not entitled to commission simply by having a customer sign a contract. Emmons is concerned with which real estate agent was the effective cause of sale, a common issue in contracts for the sale of land. That was not the issue before the Tribunal; the issue was whether Mr Baird was entitled to commission simply by having customers enter into a contract.
[5][2005] NSWCA 117.
Swag argued that, because Mr Baird’s position description included the preparation, detailing and handover of campers, his entitlement to commission was necessarily subject to those duties being completed. The learned Adjudicator took a different view by reading the obligation to sell as something different from the obligation to prepare the campers for delivery.
As Swag has conceded, perhaps it should have reviewed the terms of Mr Baird’s contract of employment. They submitted that some of the terms it now wants to rely on were verbally agreed with Mr Baird.[6] Unsurprisingly, Mr Baird does not agree that the terms Swag wants to rely on were part of a verbal agreement.
[6]T1-26, 31-35.
The Tribunal’s interpretation of the employment contract is open on the evidence, and I can find no good reason to come to a different view.
An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. Swag had the opportunity to fully explain its case before the Tribunal. For tactical reasons it chose not to do so. It must accept the consequences of that decision.
Orders
Leave to rely on fresh evidence is refused.
Leave to appeal is refused.
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