Hojaij v French
[2024] QCATA 130
•10 December 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Hojaij & Anor v French & Anor [2024] QCATA 130
PARTIES:
ROBERTO CARLOS HOJAIJ (first appellant)
CBP - CLINIC OF BIOLOGICAL PSYCHIATRY
ACN 165 640 951(second appellant)
v
ZIPPORAH FRENCH (first respondent)
PRESCRIBE PRACTICE MANAGEMENT PTY LTD
ACN 602 278 357(second respondent)
APPLICATION NO:
APL019-24
ORIGINATING APPLICATION NO:
Q1602-2023
MATTER TYPE:
Appeals
DELIVERED ON:
10 December 2024
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Judicial Member Stilgoe OAM
ORDERS:
1. Leave to appeal is refused.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where the Tribunal awarded the appellant $6,000, being the amount offered and accepted in satisfaction of a claim for a full refund of a sum paid under a recruitment contract – where the appellant argued that the Tribunal should have awarded a refund of the sum paid under the recruitment contract – where the appellant conceded that he had accepted the offer of $6,000 in the original proceeding – where the appellant failed to point to any error by the Tribunal – where the Tribunal was entitled to find that the offer had been accepted – whether leave to appeal should be granted
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the appellant brought an application in the Tribunal’s minor civil disputes jurisdiction – where the Tribunal has jurisdiction to hear claims arising from consumer/trader contracts and trader/trader contracts – where the Tribunal has excluded those who practice in disciplines or professions not ordinarily regarded as being within the field of trade and commerce – where the appellant was a biological psychiatrist and the respondent was a recruitment service provider – where the appellant, if leave were granted, sought to argue a claim arising out of the parties’ contract – whether a claim under the contract was within the Tribunal’s minor civil disputes jurisdiction
Queensland Civil and Administrative Tribunal Act 2009 s 11, s 12, s 142, sch 3
Australian Broadcasting Commission v Bond (1990) 170 CLR 321
Dearman v Dearman (1908) 7 CLR 549
Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65
Fox v Percy (2003) 214 CLR 118
McDonald v Kenmore Podiatry Pty Ltd [2012] QCAT 126
Pickering v McArthur [2005] QCA 294
Pretia v Aknar (1996) 40 NSWLR 165
Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679
Safe and Sound Building Society v SRJ Audit Pty Ltd [2015] QCATA 109
Terera & Anor v Clifford [2017] QCA 181
Waterford v The Commonwealth (1987) 163 CLR 54
Wong v Ong [2015] QCATA 51
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
Roberto Hojaij contracted with Prescribe Practice Management to recruit a part time administrative employee in his medical practice, Biological Psychiatry Clinic. Prescribe recruited a candidate for the Clinic and was paid $9,142.85.
Within a week of commencing their employment, the candidate resigned. Professor Hojaij requested a refund of the sum paid to Prescribe under the contract.
In response, Ms Zipporah French, Prescribe’s principal, offered to refund $6,000.00. A deluge of email correspondence was exchanged between the parties in which Professor Hojaij claimed to have accepted Ms French’s offer. She did not refund any amount.
Professor Hojaij applied to the Tribunal, seeking a full refund of $9,142.85. The Tribunal found that the Professor Hojaij was only entitled to the offer made and ordered that Prescribe pay $6,000.00 to Professor Hojaij/the Clinic.
Professor Hojaij now wishes 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, s 142(3)(a)(i) (‘QCAT Act’).
[2]Pickering v McArthur [2005] QCA 294, [3]; Terera & Anor v Clifford [2017] QCA 181, [10].
Professor Hojaij argues that the Tribunal should have, pursuant to the original contract, decided that a full refund should be ordered.
An appeal tribunal should generally not interfere with the findings of fact made in a first instance decision,[3] except where those findings of fact are demonstrated to be wrong by incontrovertible facts, or if they are contrary to compelling inferences.[4] There is no error of law simply in making a wrong finding of fact unless there is no evidence to support that finding.[5]
[3]Dearman v Dearman (1908) 7 CLR 549, 561; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, 697.
[4]Fox v Percy (2003) 214 CLR 118, 128.
[5]Waterford v The Commonwealth (1987) 163 CLR 54 [77]; Australian Broadcasting Commission v Bond (1990) 170 CLR 321, [341].
The transcript shows that Professor Hojaij argued that he had accepted the offer of $6,000.[6] He also made concessions that Prescribe were entitled to a partial amount of the sum paid.[7] In the circumstances, the learned Adjudicator was entitled to find there had been an offer, and an acceptance in satisfaction of a claim against Prescribe.
[6]T1-8, line 34 to 49; T1-9, line 1 to line 14.
[7]T1-13, line 10 to line 24.
The submissions of the appellant do not point to any error by the learned Adjudicator. Rather, it seems that he is unhappy with the result, and he wishes to re-open the matter for further argument.
The Tribunal will not grant leave simply because one party wants to re-argue the case. That is the purpose of the requirement for leave; to prevent a retrial on the merits.
Even if the Tribunal was minded to allow leave to appeal, there is an additional problem. The Tribunal’s jurisdiction is prescribed by s 10 of the QCAT Act and includes the hearing of a ‘minor civil dispute’.[8]
[8]QCAT Act s 11.
The minor civil dispute jurisdiction allows the Tribunal to hear claims arising out of a debt or liquidated demand, such as a liquidated amount arising from an accepted offer to settle a claim.
The Tribunal is also able to hear claims arising from a contract between a consumer and a trader, or a trader and a trader.[9] However, the term ‘trader’ does not include those who practice in disciplines or professions not ordinarily regarded as being within the field of trade and commerce.[10]
[9]Ibid s 12(4)(b)-(c), sch 3.
[10]Ibid sch 3.
This Tribunal has held that the term ‘trader’ excludes, inter alia, those acting in the disciplines of law,[11] podiatry,[12] valuation,[13] and accounting.[14] Santow J offered the following meaning of ‘profession’ in Pretia v Aknar:
This would embrace intellectual activity, or manual activity controlled by the intellectual skill of the operator, whereby services are offered to the public, usually though not inevitably for reward and requiring professional standards of competence, training and ethics, typically reinforced by some form of official accreditation accompanied by evidence of qualification.[15]
[11]Wong v Ong [2015] QCATA 51.
[12]McDonald v Kenmore Podiatry Pty Ltd [2012] QCAT 126.
[13]Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65.
[14]Safe and Sound Building Society v SRJ Audit Pty Ltd [2015] QCATA 109.
[15](1996) 40 NSWLR 165, 185.
I am satisfied that an individual providing services in the exercise of a medical discipline such as biological psychiatry – as Professor Hojaij and the Clinic do – would not meet the definition of ‘trader’. Similarly, a person offering recruitment services is more likely to be in a profession rather than a trader.
Accordingly, if leave to appeal was granted, the Tribunal would not have the jurisdiction to hear the claim stemming from the original contract.
Leave to appeal is refused.
Orders
1.Leave to appeal is refused.
0
13
1