Faraji v Daniels[2023] QCATA 147

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Mr Daniels operated a garage door and gate business. Mr Faraji is a building contractor. Mr Daniels quoted to supply and install a garage door at certain premises for Mr Faraji.
2. [2]
   Mr Faraji accepted Mr Daniel’s quotation and arranged a time at the premises for the work to be done. Mr Daniels’ workers attended but claimed there was no one else on site and they found an obstruction blocking the doorway of the garage. Mr Daniels claimed his workers were prevented from installing the garage door.
3. [3]
   Mr Daniels claimed payment for the supply and installation of the door.
4. [4]
   The parties fell out over the matter and Mr Faraji refused to pay. Mr Daniels filed an application for minor civil dispute – minor debt in the tribunal on 9 March 2022.
5. [5]
   Mr Faraji was personally served with the application on 11 April 2022.
6. [6]
   Given the application was a claim for recovery of a minor debt, by the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’), Mr Faraji was obliged to file a response to the application in the tribunal and give Mr Daniels a copy of the response within 28 days of service of the application on Mr Faraji.
7. [7]
   Mr Faraji did not do that and on 27 May 2022 Mr Daniels applied to the Registry for a decision by default. On 2 June 2022 the registrar at Cleveland Magistrates Court gave default decision against Mr Faraji for the sum of $2,929.95 in respect of the claim, $188.80 for costs and interest of $204.70.
8. [8]
   The registrar gave Mr Faraji notice of the default decision in writing which should have been received by 7 June 2022. Mr Faraji did not make an application to set aside the default decision until 24 June 2022.
9. [9]
   That application was considered by an adjudicator on 14 July 2022 and it was dismissed.
10. [10]
    On 28 July 2022 Mr Faraji filed an application for leave to appeal the decision of the adjudicator.
11. [11]
    Given this is an appeal from a decision made in the tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.^[1] 
12. [12]
    Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.^[2]
13. [13]
    Mr Faraji’s grounds of appeal are:

Ground one: the adjudicator acted in breach of s 58 Human Rights Act 2019 (Qld) (‘HRA’) and appears to have omitted any reasonable exercise of consideration and has breached the rules of natural justice;

Ground two: the adjudicator breached the appellants rights to recognition and equality under s 15(3) HRA;

Ground three: the adjudicator breached the appellants right to a fair hearing under s 31 HRA.

14. [14]
    The grounds may be considered together. There is nothing offered in support of the stated grounds of appeal. That they are broad brush is being generous.
15. [15]
    Generally Mr Faraji’s reliance on s 58 HRA is misplaced. Section 58(1) HRA provides:

58 Conduct of public entities

1.  It is unlawful for a public entity—

1.  to act or make a decision in a way that is not compatible with human rights; or

2.  in making a decision, to fail to give proper consideration to a human right relevant to the decision.

16. [16]
    The meaning of public entity is given in section 9 HRA. By s 9(4) a public entity does not include a court or tribunal except when acting in an administrative capacity.
17. [17]
    The default decision made by the registrar was an administrative decision^[3] but in considering and refusing the appellants application to set aside that decision, the learned Adjudicator was acting in a judicial capacity, his decision a binding one affecting existing legal rights and the interests of the parties.^[4]
18. [18]
    The appeal challenges the decision of the adjudicator acting in a judicial capacity rather than the administrative decision made by the registrar, although the circumstances whereby the administrative decision was made are certainly relevant as far as they concern the reasons why the adjudicator refused the application.
19. [19]
    That said, the HRA does apply to courts and tribunals where the court or tribunal has functions under part 2 or part 3, division 3 of the HRA. Such functions extend to judicial decision making, and as stated, the Adjudicator was acting judicially when he made the decision dismissing Mr Faraji’s application to set aside the default decision.
20. [20]
    Section 15 appears in part 2 of the HRA. It provides as relevant:

15 Recognition and equality before the law

1.  Every person has the right to recognition as a person before the law.

2.  Every person has the right to enjoy the person’s human rights without discrimination.

3.  Every person is equal before the law and is entitled to the equal protection of the law without discrimination.

4.  Every person has the right to equal and effective protection against discrimination. 

21. [21]
    Section 31 provides:

31 Fair hearing

1.  A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

2.  However, a court or tribunal may exclude members of media organisations, other persons or the general public from all or part of a hearing in the public interest or the interests of justice.

3.  All judgments or decisions made by a court or tribunal in a proceeding must be publicly available.

22. [22]
    As stated. there is nothing offered by Mr Faraji to support a claim that he was not offered a fair hearing in the circumstances that applied under the QCAT Rules where the legislation made default decision an available remedy to an applicant party. There is no explanation by Mr Faraji how his human rights have been breached.
23. [23]
    At the hearing of the appeal Mr Faraji did not pursue the appeal based on his HRA grounds of appeal. When asked to make submissions about such he said he had nothing to say.
24. [24]
    What Mr Faraji did make clear in oral submissions at the application for leave to appeal however, was that he had a good defence to the claim brought by Mr Daniels and he had made that same claim to the adjudicator. He felt he had not been heard on the matter.
25. [25]
    When asked at the hearing of the application for leave to appeal why he had failed to file a response to the application for minor civil dispute, he said he had relied on his partner at the time to attend to ‘paper work’ in his business. He had little recall about the circumstances and timing of the matter. He could not explain why his partner had delayed acting.
26. [26]
    It is clear that Mr Faraji was validly served with the application for minor civil dispute – minor debt on 11 April 2022. On the last page of six pages that comprise the application document there is a notice to respondents that states:

Warning to Respondents:

You must respond to this application by completing and lodging Form 7 – Response to minor civil dispute – minor debt within twenty-eight (28) days after you are given a copy of the application. Otherwise, the applicant may apply to the tribunal for a decision by default against you.

27. [27]
    Mr Faraji had until 9 May 2020 to file his response. He did not do so and default decision was given by the registrar on the application made by Mr Daniels on 2 June 2022.
28. [28]
    The adjudicator found that Mr Faraji offered no reasonable excuse for failing to file a response. On that basis, and apparently only that basis, the adjudicator refused the application to set aside the default decision.
29. [29]
    Submitted with Mr Faraji’s application to set aside default decision was a 4 page submission and copies of emails between the parties and a QBCC licensee search in respect of Mr Faraji. The adjudicator did not address any of that material. The learned Adjudicator did not address the length of the delay post the 28 day period allowed to file a response leading to the default decision, nor the period of delay after the default decision and Mr Faraji’s application to set aside the default decision. There was no consideration whether Mr Faraji had a good defence to the claim, nor consideration of the effect on Mr Daniels if the default decision was set aside.
30. [30]
    The usual principles that apply in setting aside a default decision were explained by Justice Wilson in Garland and Anor v Butler McDermott Lawyers [2011] QCATA 151:

[11]  Under s 51 of the QCAT Act the tribunal may, on application by a respondent, set aside or amend a decision by default on terms, including terms about costs and the giving of security, that the tribunal considers appropriate. The section is in very similar terms to r 290 of the Uniform Civil Procedure Rules 1999. 

[12]  Decisions on r 290 show that, among the factors relevant to the discretion arising under it are whether or not there is a good reason for the respondent’s failure to file a response; any delay in bringing the application; the respondent’s conduct in the proceedings before and after judgment; the respondent’s good faith; whether the respondent has raised a defence on the merits; and whether the applicant would be severely prejudiced if the judgment was set aside, in a way which could not be adequately compensated by, say, costs. It has been suggested that the question whether or not the respondent has a good defence may be the most important of these factors.

[13]  The discretion arising under s 50 of the QCAT Act and, in particular, in the Minor Civil Disputes jurisdiction may, arguably, involve a slightly different approach. That jurisdiction is plainly intended, under the QCAT Act, to offer speedy justice in claims involving, in comparative terms against the Courts hierarchy, the smallest sums about which citizens are in dispute.

…

[23]  It will always be important, in the Minor Civil Disputes jurisdiction, to balance the call in the QCAT Act for inexpensive and speedy resolution of these kinds of disputes against the need to ensure procedural fairness and observation of the principles of natural justice, to an appropriate extent.

31. [31]
    As stated by Justice Wilson in Garland, it has been suggested that the question whether or not the respondent has a good defence may be the most important of the factors to be considered when a party brings an application to set aside a default decision.
32. [32]
    Here Mr Faraji says Mr Daniels agreed to supply and fit a garage door. He says Mr Daniels sent workers but they did not do the work because they claimed the worksite had construction material left lying in the doorway. He says it was not hard to move. He disputes that it impeded the work. Instead of Mr Daniels’ employees moving the material they left and he has been charged for the cost of the work as if it had been done. They have not supplied a door.
33. [33]
    The reasons for decision given by the Adjudicator are brief. There is no mention, and therefore, one assumes, no consideration as to whether Mr Faraji had a defence on the merits, nor what prejudice Mr Daniels as the other party would suffer if the default decision was set aside, nor consideration given to the delays before and after default decision. These were all relevant factors to be taken into account.
34. [34]
    Nor, importantly, was consideration given to the very apparent possibility that the claim was a domestic building dispute as defined in the Queensland Building and Construction Commission Act 1991 (Qld) and that therefore the matter could not be dealt with as a minor civil dispute.^[5] Both parties are building contractors. The quotation from Mr Daniels shows his QBCC licence number. The quotation and subsequent invoice are directed to Faraji Property Construction. Attached to Mr Faraji’s application to set aside the default decision is a QBCC licensee search showing he is indeed a licensed building contractor with QBCC.
35. [35]
    Section 51 QCAT Act reposed a discretion in the Adjudicator to set aside the default decision, amend it or allow it as considered appropriate. That does not mean the tribunal was free to make decisions at whim. The discretion is intended to be exercised reasonably, and reasonable exercise of the discretion required consideration of the usual factors set out above.
36. [36]
    The relevant factors were not considered. The learned Adjudicator thereby fell into error, an error of law, in failing to address relevant factors in the exercise of discretion under s 51.
37. [37]
    Mr Faraji appears to have reasonable prospects of a defence to the claim brought by Mr Daniels. Though the matter involves further delay, Mr Daniels will not be severely prejudiced by having to prove his claim at hearing.
38. [38]
    It is appropriate to give leave to appeal and allow the appeal and set the decision of the adjudicator aside and also the default decision.
39. [39]
    Given the matter appears to be a building dispute, it is not appropriate to return the matter for hearing as a minor civil dispute – minor debt claim and then have another adjudicator refer the matter to the building list. Rather it is appropriate to return the matter directly to the tribunal’s building list where it can be confirmed the matter is a building dispute and the threshold requirement of dispute resolution through the Queensland Building and Construction Commission can then be addressed. It should be returned as an expedited building dispute pursuant to s 94 QCAT Act and r 82 QCAT Rules, to obtain the advantage of simplicity and timely resolution available through such process.