Benson v Ware [2012] QCATA 24

CITATION: Benson v Ware [2012] QCATA 24 PARTIES: Darlene Frances Benson (Applicant) v Julie Ware (Respondent) APPLICATION NUMBER: APL425-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Fleur Kingham, Deputy President Michelle Howard, Member DELIVERED ON: 22 February, 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for extension of time to file the application for leave to appeal and appeal is refused; and, 2. The application for leave to appeal and appeal is dismissed. CATCHWORDS: APPEAL – APPLICATION FOR EXTENSION OF TIME TO FILE APPLICATION FOR LEAVE TO APPEAL – APPLICATION FOR LEAVE TO APPEAL – where the respondent had made an application to recover wages – where the Tribunal ordered the payment of the sum owed – where the Applicant contends that the figures and calculations applied by the Tribunal were incorrect – where the Applicant did not file an application for leave to appeal within the statutory timeframe – whether the interests of justice are served by granting or refusing the application for extension of time sought Queensland Civil and Administrative Tribunal Act 2009, ss 32, 61, 142, 143 ANI Corporation Limited v John Holland -- 1 of 4 -- 2 Constructions Pty Ltd [1989] QCA 099 Body Corporate for No 9 Port Douglas Road v McEvoy [2011} QCATA 292 Greig & Duff as Liquidators of Australian Building Industries Pty Ltd (in liq) v Australian Building Industries Pty Ltd (in liq) [2003] QCA 298 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1978] VR 257 Legal Services Commissioner v Bradshaw [2009] QCA 126 APPEARANCES and REPRESENTATION (if any): This proceeding was heard on the papers in the absence of the parties pursuant to section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION Judge Fleur Kingham [1] I have read the reasons of Ms Howard in draft and agree with the orders she proposes and the reasons for them. Ms Howard, Member [2] Ms Ware applied to the tribunal to recover wages which she claimed were owing to her by Ms Benson. A Magistrate, sitting a Member of the Tribunal, heard the application on 7 June 2011. He ordered that Ms Benson pay the sum of $2,642.41 to Ms Ware and allowed two months for payment to be made. [3] Ms Benson filed an application for leave to appeal the Magistrate’s decision, together with an application for extension of time, on 24 November, 2011. [4] The grounds of appeal were specified in the following terms: ‘I brought (sic) a small coffee shop I was supplied with a wageline. wages which Ipayed (sic) by. Fair Work said I payed (sic) wrong. It went to court the Judge said I never presented a spread sheet. I was not told what he excepted (sic). I now have what he asked for.’ [5] Ms Benson asks the tribunal to consider the matter again, indicating that Fair Work provided three different views. Further, she suggests that the order made should be adjusted, as the Magistrate declined the application for holiday pay, but did not reduce the award by the amount of the amount claimed for holiday pay. There is also reference to holiday pay and the amount claimed for wages in lieu of notice and the way in which they should be treated. -- 2 of 4 -- 3 [6] In her application to extend time, Ms Benson says that the extension is sought in order to correct the figures. In particular, she says that Ms Ware handed up the incorrect figures and contends that the correct and up to date figures from Fair Work Australia should be used. Further, it says that the Magistrate determined that holiday pay was not included, but did not deduct it from the amount of the claim. [7] Ms Ware submits that leave to appeal should not be granted. [8] The audio recording of the hearing reveals that the learned Magistrate was given several versions of calculations, including spreadsheets, done by Fair Work Australia, one of them on the basis of Ms Benson’s version of events relating to the termination of Ms Ware’s employment. His reasons for decision disclose that he accepted the calculations based on Ms Benson’s version of events relating to termination and made orders accordingly. This included allowing wages overtime and penalties, as well as pro rata holiday pay, but not wages in lieu of notice. Applications for Extension of Time and Leave to Appeal [9] Section 61 of the QCAT Act provides that the tribunal may extend procedural time limits fixed for the commencement of proceedings under the QCAT Act.1 The issue for determination on an application for extension of time is whether the interests of justice are served by granting or refusing the extension sought.2 Relevant considerations include the length of the delay and the reasons for it; the merits of the appeal and its prospect of success on appeal if leave is granted; and the degree of prejudice to the other party if time is extended.3 [10] If the discretion to extend time is exercised, the next question for consideration is whether leave to appeal should be granted. Leave to appeal is required in order to appeal a decision in a minor civil dispute.4 [11] 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? 1 Queensland Civil and Administrative Tribunal Act 2009, s 61(1). 2 For example, see Legal Services Commissioner v Bradshaw [2009] QCA 126; Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1978] VR 257; Body Corporate for No 9 Port Douglas Road v McEvoy [2011} QCATA 292. 3 For example, see Legal Services Commissioner v Bradshaw [2009] QCA 126; Greig & Duff as Liquidators of Australian Building Industries Pty Ltd (in liq) v Australian Building Industries Pty Ltd (in liq) [2003] QCA 298; ANI Corporation Limited v John Holland Constructions Pty Ltd [1989] QCA 099; Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1978] VR 257. 4 Queensland Civil and Administrative Tribunal Act 2009, s 142. -- 3 of 4 -- 4 [12] An appeal is not an opportunity for a party to present their case again. It is for correcting error made by the Tribunal in deciding the proceeding. Discussion and Decision [13] Ms Benson filed her applications to extend time and for leave to appeal, some months after she was entitled to file an application for leave to appeal.5 Her application for an extension of time does not provide any reason for the delay at all. It does no more than suggest that she now wants another opportunity to present her case and that she considers the Magistrate refused the claim for holiday pay but failed to deduct. This is consistent with the application for leave to appeal and appeal and the grounds of appeal specified and orders sought by Ms Benson. [14] As discussed earlier, the purpose of an appeal is to correct error by the Tribunal which made the decision under appeal. It is not to enable a party another opportunity to present their case. Further, contrary to the contention to be made by Ms Benson if she is allowed to appeal, the learned Magistrate’s reasons for decision reveal that he allowed pro rata holiday pay. For these reasons, the appeal itself has no merit. [15] Accordingly, there is no proper basis to exercise the discretion to extend time for the filing of the application for leave to appeal and appeal. It is not in the interests of justice to do so. [16] Further, even if an extension of time was granted, leave to appeal would be refused because there is no error identified by Ms Ware’s application for leave to appeal and appeal. [17] Orders are made refusing the application for extension of time and dismissing the application for leave to appeal and appeal. 5 Queensland Civil and Administrative Tribunal Act 2009, s 143. -- 4 of 4 --