Hojaij v French[2024] QCATA 130

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   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.
2. [2]
   Within a week of commencing their employment, the candidate resigned. Professor Hojaij requested a refund of the sum paid to Prescribe under the contract.
3. [3]
   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.
4. [4]
   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.
5. [5]
   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]
6. [6]
   Professor Hojaij argues that the Tribunal should have, pursuant to the original contract, decided that a full refund should be ordered.
7. [7]
   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]
8. [8]
   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.
9. [9]
   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.
10. [10]
    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.
11. [11]
    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]
12. [12]
    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.
13. [13]
    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]
14. [14]
    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]

15. [15]
    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.
16. [16]
    Accordingly, if leave to appeal was granted, the Tribunal would not have the jurisdiction to hear the claim stemming from the original contract.
17. [17]
    Leave to appeal is refused.

Orders

2. 1. Leave to appeal is refused.