Nemeth t/as Lockyer Valley Fencing v Barton

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
JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Ervin v Smipat Pty Ltd t/as L J Hooker Burleigh Heads [2013] QCATA 153
Ford v Thexton trading as Family Legal and
Thexton Lawyers [2014] QCATA 180

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.

Nemeth t/as Lockyer Valley Fencing sought leave to appeal against a decision of the Fair Work Commission which dismissed their application for a stay of a proceeding in the District Court of Queensland. The Fair Work Commission had found that the dispute was a minor civil dispute and was related to the employment of a former employee of Nemeth. Barton had already paid most of the debt owed to Nemeth, and Nemeth sought a stay of the District Court proceeding on the basis that the dispute related to employment. The Fair Work Commission dismissed the application on the basis that it had no jurisdiction to grant a stay in the circumstances.
The legal issues before the court were whether the Fair Work Commission had jurisdiction to grant a stay of the proceeding in the District Court and whether there were any grounds to grant such a stay. The court found that the Fair Work Commission did not have jurisdiction to grant a stay as the dispute was a minor civil dispute and not related to employment. The court further found that even if the Fair Work Commission had jurisdiction, there were no grounds to grant a stay as most of the debt had already been paid. The court held that the appeal did not disclose any arguable error or irregularity in the decision of the Fair Work Commission. The appeal was therefore dismissed and leave to appeal was refused.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established