Salari v Oliva[2025] QDC 26

DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   On 9 September 2024, Magistrate O'Neill heard proceedings brought by the respondent against Mr Salari seeking damages for breach of s. 18 and/or s. 29(1)(b) of the Australian Consumer Law^[1] (the ACL) along with interest and costs.  Mr Salari represented himself at the trial. 
2. [2]
   The transcript was not put before me, but her Honour recorded in her reasons that English was not Mr Salari’s first language and that he had:

…informed me that he has a PhD in politics from Griffith University from which I infer that he has proficiency in written and spoken English.  I observed that he was able to communicate in English sufficiently well to put his case.

3. [3]
   In the course of argument, I made the same observation as her Honour in that once Mr Salari settled down in Court, he appeared to be able to put his points and understand my statements quite well.
4. [4]
   On 30 October 2024, Magistrate O'Neill gave written reasons and ordered that judgment be entered against Mr Salari for $19,475.03 and invited submissions on interest and costs (the ACL judgment). 
5. [5]
   On 27 November 2024, Mr Salari filed his first Notice of Appeal (the NOA), appealing the ACL judgment, giving the grounds as follows:

I was representing myself and was unaware of the procedure, so I was unable to present some vital evidence; the decision was made based on serious errors in “findings as to evidence” and the consequent implication of relevant laws to those errors as given in evidence.

6. [6]
   The ACL NOA stated his email address as [email protected]
7. [7]
   No evidence was before me as to submissions on costs and interest, though I was told from the bar table that submissions were made by Mr Oliva for indemnity costs based on offers which had been made and that that explains the reason for the relatively large sum ordered by her Honour as compared to the judgment sum.  However it occurred, on 20 December 2024, her Honour ordered that Mr Salari pay costs of $33,150 and interest of $1,866.61 (the costs order). 
8. [8]
   On 8 January 2025, Mr Oliva’s solicitors (Tusk Lawyers) sent a letter to Mr Salari by email in which they stated:

   1. A party requires leave to appeal a civil judgment of the Magistrates Court where the judgment of the Court is less than the minor civil dispute limit of $25,000 pursuant to s. 45(2) Magistrates Courts Act 1921;
   2. That because the ACL judgment was less than the minor civil dispute limit, he required leave to appeal;
   3. Leave to appeal would only be granted under s. 45(2) if the Court was satisfied that some important principle of law or justice was involved;
   4. That he had to file an application for leave to appeal and that “until such leave is granted, your appeal cannot be heard”;
   5. That if he did not file an application for leave and supporting affidavit by 17 January 2025, they would apply for dismissal of the ACL appeal.
9. [9]
   Although there were aspects of Tusk Lawyers’ letter which were not completely correct as a matter of law (the assertion in paragraph [8](b) in particular), the gravamen of the legal propositions in the letter were correct.
10. [10]
    Mr Salari did not respond to Tusk Lawyers. However, on 10 January 2025, he filed a document headed Amended Notice of Appeal (the Amended NOA) which appealed her Honour’s orders of 20 December 2024 as to costs and interest. The Amended NOA contained no reference to the ACL judgment, nor to the NOA, although the grounds of appeal remained the same as those in the NOA.  Those grounds raised nothing relevant to costs or interest.  It was unclear if the Amended NOA intended to replace or supplement the NOA, though I infer Mr Salari intended the latter.
11. [11]
    On 10 January 2025, Mr Salari also filed an affidavit in the appeal.  The purpose of that affidavit was unclear; it was not referable to any application for leave to appeal because none had been made.  In that affidavit, Mr Salari confirms he has a PhD in political science and is a “public intellectual”.  He swore that at trial, he was unaware of the Court’s process and procedure and he “could not present my defense”.  He then purports to swear to extensive evidence which he “wanted to explain” presumably to her Honour at the trial.  The affidavit contains thereafter four pages of allegations, submissions, irrelevant speculation, statements about industry practice and evidence of third parties.  I infer this is supposed to be the frustrated defence which he swore he could not present because of his lack of awareness of Court process. 
12. [12]
    Despite that, the affidavit does not deal with what actually occurred at the trial, whether this evidence was available at the time and if so, why it was not led. Nor is it possible to assess its credibility or reliability.  In short, it was impossible to assess if the pages of assertions and allegations in the affidavit comprised evidence which might be admitted on the hearing of any appeal from the ACL judgment.
13. [13]
    On 28 January 2025, true to their word, Tusk Lawyers filed an application to strike out the appeal, supported by an affidavit.  The affidavit simply exhibited the ACL judgment and the 8 January letter.  The application was made returnable on 4 February 2025.
14. [14]
    The application and affidavit were served by email to Mr Salari’s email address shown on his Notices of Appeal.  This was proper service under Rule 112(1)(e)(ii) Uniform Civil Procedure Rules 1999 (the UCPR).  (It was later confirmed by Mr Salari that it was received but he said his inbox was full, and it went to junk mail.)
15. [15]
    Mr Salari did not appear on 4 February.  After service was proved by tender of copies of the email to Mr Salari, I proceeded to hear the application.  For reasons I gave ex tempore, I struck out the appeal and fixed costs at $3,000.  I will explain those reasons further below.
16. [16]
    Mr Salari later swore that he discovered the application and affidavit served by Tusk Lawyers on his email address sometime after 4 February and approached the Registry.  Ultimately, my associate informed him that any application to set aside my 4 February order should be filed and served by 14 February 2025.  On 11 February, my associate provided a copy of my reasons in corrected transcript form to both parties.  I have made that email correspondence an exhibit in Mr Salari’s application.  On 14 February, Mr Salari filed an application and supporting affidavit.  The application came before me on 18 February 2025.   

The 4 February hearing and reasons

17. [17]
    Section 45 Magistrates Courts Act 1921 (the Magistrates Courts Act) relevantly provides:

1. Subject to this Act, any party who is dissatisfied with the judgment or order of a Magistrates Court—

1. in an action in which the amount, value or damage involved is more than the minor civil dispute limit; or

…

may appeal to the District Court as prescribed by the rules.

2. Provided that—

1. where in any of the cases above referred to in subsection (1) the amount, damage or value is not more than the minor civil dispute limit, an appeal shall lie by leave of the District Court or a District Court judge, who shall not grant such leave to appeal unless the court or judge is satisfied that some important principle of law or justice is involved;

…

5. In this section—

"minor civil dispute limit" means the amount that is, for the time being, the prescribed amount under the Queensland Civil and Administrative Tribunal Act 2009 .

18. [18]
    The minor civil dispute limit for the purposes of this matter is $25,000.
19. [19]
    On the hearing of the application on 4 February, a question arose as to how to construe s. 45(1)(a).  That issue arose because while the ACL judgment was under the limit, the costs order was over the limit.  Importantly, on the evidence before me at that time, I assumed wrongly that the amount of $33,100 in the costs order was an order which included the ACL judgment of $19,475.03 plus costs, giving a total of $33,100.  It is of no relevance how that mistake occurred.  However, it explained how I approached the issue.
20. [20]
    The question I thought arose, based on my mistaken assumption, was whether “the amount, value or damage” in s. 45(1) and (2) was the amount of a judgment on the cause of action excluding costs, the amount of a judgment on the cause of action including costs, or some other amount.
21. [21]
    I concluded that the phrase referred to the amount claimed in the action in the claim and statement of claim, and that therefore leave was required for the amended notice of appeal.
22. [22]
    I then considered whether Mr Salari’s affidavit, which I considered despite his non-appearance, provided any sufficient reason to believe that some important principle of law or justice was involved in the appeal which he sought to agitate for the purposes of s. 45(2)(a). I concluded:

The applicant recognised that there might be circumstances where notwithstanding all the things I have said, leave should be given, notwithstanding that Mr Salari has never sought leave, and might well have been under the misunderstanding that his amended claim addressed the problem. I have looked through his affidavit filed in support of this application. Nothing jumps out at me from it which would satisfy me that an important principle of law or justice is involved.

He seems to advance, broadly, three points. The first is a natural justice point. That is not developed in any detail, and, in any event, it will be commonplace for cases to be defended involving small claims and an over-enthusiastic approach to – seeking to identify procedural fairness issues in such trials not really consistent with the policy of the statute. 

Second, he seems to cavil with various factual findings and third, seems to also want to put further evidence before the court. None of those matters persuade me that it is an appropriate case for leave, bearing in mind, of course, that, despite having the matter drawn to his attention, he did not appear today to advance such application for leave. 

The issues on Mr Salari’s application

23. [23]
    Mr Salari’s application did not seek to set aside my order of 4 February 2025 despite Tusk Lawyers explaining the obligations of a party seeking leave to appeal in their 8 January letter, the direct explanation as to the order he required in my associate’s email of 11 February and the explanation of the issues on the question of leave to appeal in my reasons of 4 February 2025 which were provided to Mr Salari.  Rather it sought orders:

    1. “Approving” his appeal against both decisions;
    2. Failing that, approving just his appeal against the costs order in the following terms:

…to be calculated on the standard rather than the current indemnity basis.  Moreover, some of the evidential matters in the Plaintiff’s material are not factual

3. Failing that, an order for a payment plan. 

24. [24]
    Read generously, the first two orders might be construed as orders seeking leave to appeal.  Obviously, no such application could be considered until my order of 4 February was set aside.
25. [25]
    I indulged Mr Salari by treating his application as an application to set aside my 4 February order.  It was a considerable indulgence given the direct assistance he had been given as to what application was required from him.
26. [26]
    A source of power to set aside my 4 February order is Rule 667(2)(a) UCPR.  Rule 667 relevantly provides:

667(1)  The court may vary or set aside an order before the earlier of the following—

1. the filing of the order; 

2. the end of 7 days after the making of the order.

(2)  The court may set aside an order at any time if—

1. the order was made in the absence of a party; or

…

27. [27]
    In adopting Rule 667(2)(a) as a source of power to set aside my 4 February order, I am acting on a construction of that rule by which the discretion arises from mere physical absence even if the applicant was served, rather than absence because the matter was heard ex parte.  
28. [28]
    Authority supports the construction that the condition that a party be absent is met where a party is physically absent^[2], albeit they will not be physically absent if their solicitor is present.^[3]  The consequence is that the Rule applies even if a party has been properly served and does not appear, as occurred in the leading Queensland case of Sproule v Long [2001] 2 Qd R 335 at [12]. 
29. [29]
    Absent authority, an alternative construction would be open by which an order is made in a party’s absence only where the explanation for the absence is that a party has not been served.  Such a construction would be consistent with the general principle that a party has a right to a reasonable opportunity to be heard, not an absolute right regardless of their conduct in the litigation.  That principle underpins, inter alia, the approach of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 see [94], [98], [102] and [112].  Such a construction might be thought to be more consistent with Rule 5. 
30. [30]
    Further, the principal authority relied upon in Sproule did not involve a case where the absent party had been served but not appeared, rather it was a case where there had been no notice: see Wilkinson v Wilkinson [1963] P. 1, a decision decided in a very different statutory context from that provided by the UCPR. 
31. [31]
    However, the construction in Sproule is established in Queensland and is plainly a reasonable construction of language in the Rule, perhaps the better literal construction.  If a different construction is to be adopted, I consider it is now a matter for the Court of Appeal.  Ultimately not much is likely to turn on the distinction in most cases, as an absence despite proper service will be a powerful discretionary factor against setting aside an order under Rule 667(2)(a).
32. [32]
    Accepting then that I have power to set aside my 4 February order, the question is should I exercise that power?  The answer is no.
33. [33]
    First, as I have noted, while the power to set aside under Rule 667(2)(a) exists even if the other party has been served, failure to appear when served is relevant to the discretion.  Mr Salari explained his failure to appear.  He swore that the email attaching the application and affidavit from Tusk Lawyers went to his active email account but the inbox was full, so it went to junk mail.  That is not how I have experienced email platforms to operate, but I somewhat reluctantly accept that explanation.  The consequence is that Mr Salari’s failure to appear was his fault (because Tusk Lawyers were entitled to serve on that email address), but it is also relevant that it was not deliberate.
34. [34]
    Second, despite my misunderstanding of the two Notices of Appeal, it remains the case that Mr Salari needed leave to appeal.  I explain as follows.
35. [35]
    I maintain the correctness of my construction of the expression “in an action in which the amount, value or damage involved” expressed in my previous reasons.  The sum to be considered is the amount claimed in the claim and statement of claim (or disclosed in the originating application and affidavit) in respect of the cause of action articulated in those documents.  Indeed, I am more firmly of that view because it is consistent with a view reached by Judge Barlow KC of this Court in a fully argued case on the issue: Taylor David Pty Ltd v Walker [2020] 334.
36. [36]
    In that case, the appellant sought to appeal an interlocutory order of a Magistrate dispensing with the Request for Trial with costs.  The appellant sought only to appeal the costs order.  The question was whether leave to appeal was required.  By the claim, the appellant advanced a cause of action in debt for $24,589.25 with interest claimed at $226.  The total was less than the $25,000 limit.  Many inventive submissions were advanced by counsel, but ultimately his Honour concluded that:^[4]

    1. Section 45 should be read together with s. 4, conferring civil jurisdiction on the Court;
    2. Section 4 applied to confer jurisdiction based on the sum claimed by way of remedy for the cause of action in the claim and statement of claim;
    3. Accordingly, the phrase “in an action in which the amount, value or damage involved” should be construed as identifying that sum, not the value of the ultimate judgment, nor the value of the claim taking into account interest.
37. [37]
    On the question of accruing interest, his Honour’s conclusion was compelling in the face of the express terms of s. 4AAA Magistrates Courts Act which provides that interest should be disregarded in applying s. 4, regardless of whether it is claimed under a contractual provision or under statute. 
38. [38]
    Taylor did not consider the place of an order for costs in the calculation of the amount for the purposes of questions of leave under s. 45(2).  Two possibilities arise which might obviate the need for leave to appeal in respect of an award of costs:

    1. That in calculating “the amount, value or damage” involved under s. 45, one includes an amount of costs; or
    2. That an award of costs might itself comprise an action for the purposes of s. 45(1) such that if an award of costs exceeds $25,000, leave to appeal is not required.
39. [39]
    I do not think either possibility arises on the proper construction of s. 45.  An award of costs (at least to the extent it is based on statutory power to order costs) is both discretionary and contingent at the time of commencement of proceedings.  It cannot be characterised as part of the amount, value or damage involved for the action brought by the plaintiff and further, cannot be quantified at the time of commencement of the proceedings.  
40. [40]
    Nor can it be described as an action within the meaning of that word as used in ss. 4 and 45 Magistrates Courts Act.  An action in s. 4 and, in my view, in s. 45 refers to an inter partes cause of action.  Cause of action, in that context, refers to the material facts which give rise to a remedy at law.  A claim for costs under a contractual provision providing for payment of costs might qualify as a cause of action.  However, where, as here, the basis of the claim for costs is pursuant to the Court’s statutory power to award costs, the claim cannot be characterised as a cause of action.  Rather, it is a contingent right in both parties arising by virtue of the invocation of the Court’s jurisdiction and the existence of the statutory power to award costs.
41. [41]
    I do not consider that an order for costs based on the exercise of the Court’s statutory power is an action within the meaning of the word as used in s. 45.
42. [42]
    The conclusion I reach in this case, therefore, is that Mr Salari required leave to appeal regardless of the amount or existence of the costs order because leave was determined by the amount of damages sought in the action at the time Mr Oliva commenced it. 
43. [43]
    Third, having reached the conclusion that leave to appeal is required, a key discretionary consideration in considering whether to set aside my 4 February orders is whether there is a sufficient prospect of success on an application for leave to appeal.
44. [44]
    If Mr Salari cannot persuade me that there is a sufficient prospect of him succeeding on his leave application to justify setting aside my orders, then to do so would likely be futile.  That required Mr Salari to satisfy me that some important principle of law or justice is involved in his appeals.  I am not satisfied of that.
45. [45]
    I deal first with his potential appeal of the ACL judgment.  Mr Salari stated that he only wished to rely on his affidavit filed in support of his application on 14 February 2025.  That affidavit largely restated the same sort of matters as raised in his earlier affidavit.  The gravamen of that affidavit was again that there was evidence he wanted to put before the Magistrate which presumably he had not, and that the Magistrate had placed too much weight on primary facts and not enough on ultimate facts.  The distinction between primary facts and ultimate facts, so far as I could discern, involved an argument that her Honour placed too much weight on some evidence (unfavourable to Mr Salari) and too little weight on other evidence (favourable to him).  That is not a persuasive basis for an appeal, much less for concluding that some important point of principle of justice arises.
46. [46]
    Mr Salari did not put her Honour’s reasons before the Court, although it appeared from his affidavit that he had access to some version of them: see paragraph 2 of the affidavit.  However, her Honour’s reasons were put before me by the respondent without objection from Mr Salari. 
47. [47]
    In my respectful view, there is no obvious error in her Honour’s reasons.  At the heart of her reasons was her finding that Mr Salari was not a credible or reliable witness and that the plaintiff and his wife were credible and reliable.  Her Honour gives persuasive reasons for those conclusions, and they are conclusions which she is uniquely placed to reach as a trial judge seeing and hearing the witnesses.  Doing the best I can, it seems much of Mr Salari’s affidavit is concerned with going behind the key credit findings at trial by her Honour.  An appeal which depends on overturning those credit findings would have poor prospects of success, at least in this case given the reasoning on credit in the reasons:  Fox v Perry (2003) 214 CLR 118 at [23] to [31].
48. [48]
    As to the possibility of leading further evidence on the appeal, Mr Salari gave me no reason to suspect that the extensive evidence he says he wanted to put before the Court was not available at the time of trial.  
49. [49]
    What Mr Salari’s evidence and submissions singularly fail to do is to identify any proper error of fact or law in her Honour’s reasons. 
50. [50]
    I now deal with Mr Salari’s appeal on costs.  That is easily disposed of.  True it is that the costs exceed the amount of the judgment.  However, that is not of itself material.  The costs order was apparently made on an indemnity basis given the making of offers. It is not unusual in a small case for costs to be relatively large; small claims do not necessarily have simple legal issues.  Mr Salari has put nothing else before this Court to cause me to conclude that there is an important principle of law or justice arising in respect of his potential costs appeal.
51. [51]
    Fourth, there were various suggestions in Mr Salari’s material and submissions that he was limited in his ability to participate in the trial because of his self-represented status and that this made the trial unfair.  There was very little in the way of detail to back up this submission. 
52. [52]
    In his affidavit filed 14 February 2025, he referred to raising the allegation of fraud by the plaintiff and his wife in the trial and being told by her Honour that it was too late to raise it because it would involve “another day of hearing that would cost $100,000”.  I have serious doubts that her Honour gave a figure or used those precise words.  However, it is entirely possible that Mr Salari did seek to raise a new allegation of fraud at trial and that her Honour refused leave to introduce such allegations at that stage.  There is no obvious unfairness in her doing so in those circumstances, absent some other compelling reason to permit late amendment which would have forced adjournment of a trial of a minor civil dispute: see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.  
53. [53]
    As noted above, in his 10 January 2025 affidavit, Mr Salari also said that at the trial, he was unaware of the Court’s process and procedure and he “could not present my defense”.  That conclusory statement provides no basis to assume that the trial miscarried because it was unduly unfair given his self-represented status.  Although a Court has a duty to assist an unrepresented litigant to obtain a fair trial, that duty is significantly confined by the obligation of the Court to remain impartial and the entitlement of the represented party to the full extent of its legal rights: Rajski v Scitec Corporation Pty Ltd.^[5]
54. [54]
    Further, it is evident from her Honour’s reasons that she was conscious of Mr Salari’s self-represented status and endeavored to address it.^[6]  There is no obvious flaw in her Honour’s approach.  And as I noted, Mr Salari did not point to anything specific.
55. [55]
    There are two other matters relevant to any potential appeal point arising from his self-represented status at trial:

    1. The first is that while Mr Salari obviously needed a little time to hear and respond in English, I found him well able to express himself in English as did her Honour.
    2. Second, Mr Salari’s conduct in the course of the issues before me disclose a tendency in him not to approach Court matters diligently or with any focus, even when the issues are spelled out for him by the plaintiff’s lawyers or even by this Court.  Difficulties in properly presenting his case, if there were such, seem just as likely to be the result of his insouciant approach to legal proceedings as to be the result of her Honour’s conduct of the proceedings.
56. [56]
    For those reasons, I do not consider Mr Salari has a persuasive case that his appeals would raise any important principle of law or justice, rather the contrary.  Setting aside my 4 February order would be futile in those circumstances.
57. [57]
    For those reasons, I decline to exercise my discretion under s. 667(2)(a) to set aside my order of 4 February dismissing Mr Salari’s appeals. 
58. [58]
    As to Mr Salari’s application for an order for payment by instalments, that is a matter for application to the Magistrates Court.
59. [59]
    I will hear the parties as to costs.