Abdelrazek v Pacific Harbour Residential Community Association Inc [2023] QCATA 57

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Abdelrazek v Pacific Harbour Residential Community Association Inc AIA 31735 [2023] QCATA 57 PARTIES: ABDELRAZEK ABDALLIA ABDELRAZEK (applicant/appellant) v PACIFIC HARBOUR RESIDENTIAL COMMUNITY ASSOCIATION INC AIA 31735 (respondent) APPLICATION NO/S: APL185-22 ORIGINATING APPLICATION NO/S: MCDOQ18/22 MATTER TYPE: Appeals DELIVERED ON: 18 May 2023 HEARING DATE: 10 May 2023 HEARD AT: Brisbane DECISION OF: Member Lumb ORDERS: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The decision of the Tribunal dated 27 May 2022 is set aside. 4. The matter is returned to a differently constituted Tribunal for reconsideration without the hearing of additional evidence. 5. Within 14 days of the date of these orders, the parties shall file with the Tribunal, and serve on the other party, a copy of written submissions, no longer than 5 pages, on the question of costs of the Application for leave to appeal or appeal. 6. Each party may, within 14 days of the date of receipt of the other party’s submissions on costs, file with the Tribunal, and serve on the other party, a copy of any written submissions in reply, no longer than 5 pages. 7. Unless otherwise ordered by the Appeal Tribunal, the question of costs will be heard and determined on the papers, without an oral hearing. -- 1 of 11 -- 2 CATCHWORDS: APPEAL – GENERAL PRINCIPLES – leave to appeal – minor civil dispute – whether denial of procedural fairness by failure to address argument about part of claim – whether denial of procedural fairness by failure to invite submissions on costs or give reasons for costs Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102, s 142, s 146 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), rule 84 Uniform Civil Procedure (Fees) Regulation 2019 (Qld), schedule 2, part 2 Berry v Treasure & Anor [2021] QCATA 61 IM v Adult Guardian and The Public Trustee of Queensland [2011] QCATA 114 Saxer v Hume [2022] QCATA 25 REPRESENTATION & APPEARANCES: Applicant: Self-represented Respondent: Self-represented REASONS FOR DECISION Introduction [1] By an Application for leave to appeal or appeal filed on 22 June 2022 (the Appeal Application), the Applicant (Mr Abdelrazek) seeks leave to appeal, and to appeal, a decision made by the Queensland Civil and Administrative Tribunal (the Tribunal) on 27 May 2022 (the Decision). [2] The Decision was made in a proceeding commenced by the Respondent to the Appeal Application (the Association) by an Application for minor civil dispute – minor debt filed on 11 February 2022 (the MCD Application). Mr Abdelrazek was the Respondent to the MCD Application. [3] The nature of the claim was for recovery of what were alleged to be unpaid ‘membership fees’ including ‘arrears fees’. [4] An oral hearing of the MCD Application took place on 27 May 2022. By the Decision, the Tribunal (constituted by an Adjudicator) ordered that Mr Abdelrazek pay to the Association the sum of $959.85, comprising $773.20 for claim and $186.65 for costs, within 28 days. The Grounds of Appeal/Orders sought [5] Part C of the Appeal Application states as follows: Please refer to the following pages 1,2,3,4,5,1. 1. It is impossible for the judiciary to exist and to be accountable to legal and ethical standards without the trust of the proposition and the applicant. It is critical that this review of -- 2 of 11 -- 3 judicial conduct be conducted without jeopardizing the independence of the judicial decision-making process by holding them accountable for their actions. In my case, I have been observing the following mistakes, which need to be reviewed, However, it is a simple case, but, it is the matter of principle “Why do I have to spend money since 2009 until 2021), while I am poor; 2. For unknown reasons, the judge refused to listen to the applicant’s wonders during the telephone hearing. For example, what services did he offer to me or the land, or what is the definition of services? 3. Since I am living in the Springfield district, 75 kilometres from the Bribe Island . I want to withdraw from the agreement with Pacific Harbour as a member of this community. This because I am pension with disability (Heart problems triple bypass, brain strokes, ……., depression.), As judge has neglected this request: [6] The Orders sought in Part D of the Appeal Application are stated as follows: Pleas [sic] refer to page6 Finally, based on the foregoing, I am not healthy, am in the disability category, am financially failing This dispute is false because no service has been offered to me or the land. As a result of the aforementioned factors, the decision should be as follows: 5.1 The case should be dismissed without prejudice 5.2 We are required to return the total amount of funds that have been sent by me to Pacific Harbour Residential Community Inc, IA 31735 because there is no proof of delivery. Since 2009 until 2022 [7] The attachments to the Appeal Application included the following: 1. It is impossible for the judiciary to exist and to be accountable to legal and ethical standards without the trust of the proposition and the applicant. It is critical that this review of judicial conduct be conducted without jeopardizing the independence of the judicial decision-making process by holding them accountable for their actions. In my case, I have been observing the following mistakes, which need to be reviewed, However, it is a simple case, but, it is the matter of principle "Why do I have to spend money since 2009 until 2021), while I am poor; 2. For unknown reasons, the judge refused to listen to the applicant’s wonders during the telephone hearing. For example, what services did he offer to me or the land, or what is the definition of services? 3. Since I am living in the Springfield district, 75 kilometres from the Bribe Island. I want to withdraw from the agreement with Pacific Harbour as a member of this community: This because I am pension [sic] with disability (Heart problems triple bypass, brain strokes, ……, depression.), As judge has neglected this request; 4. The judge's decision was a clear violation of fundamental rights. Furthermore, the judge fails to compare my financial situation and my health. In 2009 to year 2022. I was working at Sun water and my regular monthly income was around $4,000; now, my income is dependent on Centrelink. Furthermore, I was in good health Now, I have a triple bypass, brain stroke, diabetes, high blood pressure, a broken hip and kidney cancer; -- 3 of 11 -- 4 5. Since decisions should be made by competent, lawful, and independent judicial officers and people are meant to believe in their decisions. For example, during the hearing, the judge instructs me that I needed to sell the land immediately since I couldn’t afford to pay the $1000. In this case, the judge was unable to discuss other options, however, he was insisting to follow his instructions, instead of offering a compromise solution to fix the matter, he instructed me to sell my for two-time [sic] land in a manner that misused his authority and the using the disadvantages of my limited English ability to articulate effectively in my case.; 6. While there is no link between homeownership and Pacific Harbour membership. Since the land acquisition date was April 21, the membership date was April 18, 2022, and April 2009, according to the letter I received from Pacific Harbour. As a result, the judge's instruction to sell my lands in the manner disclosed by his abuse of authority was not part of his job or responsibility. 7. The judge disregards the other factor based on the fact that I do not live on that vacant land or Bribie Island, which gives me the right not to pay for membership, given that the title of documents issued by Harbor Residential Community Association is "contribution," which indicates that payment is not mandatory. 8. I believe my complaint of ethical misconduct includes improper manner, failure to properly disqualify, and failure to perform judicial duties in a timely manner, for example, my request to withdraw from the Pacific Harbour membership agreement was proper, but the judge did not allow me to address it. 9. However, incidents where I am fined$ 959.85 and 186.65 for costs without due process, judges inventing improper remedies for cases, or a breakdown in the rule of law can rise to the level of judicial misconduct. Regulating this type of behaviour without violating the separation of powers or decision-making independence becomes a stab at the knife. [8] Mr Abdelrazek also filed written submissions on 11 August 2022. These broadly reflected the content of the Appeal Application. The submissions included the following: 1. An Australian guy, 72, who is crippled and retired, lives at 9· Arborwood Avenue, Springfield in Queensland, around 100 km from Bribie Island where I own a piece of unoccupied property; 2. The court ignored the applicant's wondering regarding services delivered by Pacific Harbour Community to him or the vacant land, or what the concept of services was; 3. Despite what the judge overlooked; the Pacific Harbour community membership agreement signed 18 April 2009 will not be mandatory in the near future; 4. The judge did not compare my financial situation or my health between 2009 and 2022. Previously, I made about $4,000 a month working at Sun Water; now I'm dependent on Centrelink for my income. I was in good health before. My medical history includes triple bypass surgery, stroke, diabetes, high blood pressure, hip fracture, and kidney cancer; -- 4 of 11 -- 5 5. My withdrawal from Pacific Harbour membership was not allowed by judge because I do not live on vacant land or Bribie Island, which gives me the right not to pay; 6. Judge has neglected, Harbor Residential Community Association documents are titled “contribution,” indicating that no payment is required; 7. I was informed by the Judge twice during the hearing that I needed to sell the property right away because I couldn't afford to pay the $1,000 fine that was levied against me. The judging capacity could not consider other options or compromise; and 8. The judge neglects a matter of principle, that "Why should I have to pay money from 2009 until 2021 (for no rewards while I am poor;). [9] The Association filed written submissions on 19 August 2022. The Association submitted, amongst other matters: 28. The property is a vacant block of land which provides no cashflow return and is not the residence of the Applicant who by his own submissions affords to live elsewhere. 29. As the Adjudicator correctly ruled in the 27 May 2022 hearing that, the Association is not responsible for and should not be impacted by the Applicant holding an investment property that by his own submissions he is unable to maintain the costs of doing so. 30. As per the attached submission by the Applicant (Attachment 4), from the April 2022 response to Q18/22, Moreton Bay Regional Council noted that the Applicant's "payment plan has not been maintained." 31. This aligns with the Association's experiences with the Applicant who agreed to a payment plan of $50.00 per month in 2019 which would have seen the account paid in full and available discounts received but the payment plan was never kept to. 32. As per Rule 7 (7) the Association could, but to date has chosen not to, charge interest on the outstanding arrears. 33. As a result of this kind gesture, as per point 16. of the Applicant's submission, the fees owing to the Association are being ignored whilst regular payment is made to a host of other parties who provide services to the property and member, such as the Mortgagee, Unity Water, Moreton Bay Regional Council and land mowing provider. 34. The following is not in dispute: (a) The Applicant is a member of the Association. (b) The Applicant agreed to and is bound by the Rules. (c) The Applicant is bound by the Rules as read with the AIA Act. (d) The Rules require the Applicant to pay an agreed membership fee. (e) The Applicant has failed to pay the membership fees claimed. (f) The Association has not terminated the Applicant's membership. -- 5 of 11 -- 6 35. The Applicant's insistence on undertakings to be made by the Association before membership fees are paid further evidences their misunderstanding of their obligations and the correct processes which need to be followed if he were to have valid grievances. 36. For the Applicant to ventilate their complaints (all of which are again disputed) and medical history in this forum is respectfully a waste of the Tribunal's resources and time. 37. The Applicant should again be ordered to pay the applicant's claim including the filing and bailiff fee but now for a total of $1,176.02 as further membership fees became overdue on 1 July 2022. Leave to appeal is required [10] An appeal against a decision by the Tribunal in a proceeding for a minor civil dispute may be made only if the party has obtained the Appeal Tribunal’s leave to appeal.1 [11] As to the Tribunal’s approach to an application for such leave, I respectfully adopt the following observations of Judicial Member DJ McGill SC in Saxer v Hume:2 … As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. In deciding whether grounds for leave to appeal have been shown, it is relevant to consider that the proceeding was a minor civil dispute, and the obligation on the Tribunal was to make orders it considered to be fair and equitable to the parties to the proceeding in order to resolve the dispute: the QCAT Act s 13(1). The Tribunal was also required to comply with the QCAT Act s 28 and s 29. (citations omitted) [12] Further, as was said by Justice Daubney, President, in Berry v Treasure & Anor:3 There is no automatic right of appeal against minor civil dispute decisions. I respectfully adopt and endorse the following observations by the former President, Justice Alan Wilson, in Durrand v Karaolis: The Queensland Parliament has made it clear, in the QCAT Act, that so far as possible minor civil disputes of this kind are to be resolved by a simple procedure which is speedy, inexpensive and final. That conclusion is reinforced by the fact that before a party can appeal a decision in this jurisdiction it must obtain leave from the Appeal Tribunal … In other words, there is not an automatic right to appeal these decisions; rather, an applicant must first establish that it has a right to a grant of leave. (citation omitted) 1 Subsection 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act). 2 [2022] QCATA 25, [2]. 3 [2021] QCATA 61, [14]. -- 6 of 11 -- 7 The merits of the Appeal Application [13] For the following reasons, I consider that leave to appeal should be granted, and the appeal allowed. [14] On my perusal of the Transcript, it was evident that Mr Abdelrazek did not have a good grasp of the English language. This was plainly the case at the hearing of the Appeal Application. [15] At the conclusion of the hearing below, the Adjudicator made the Decision. The Adjudicator did not give oral reasons at the time of making the Decision.4 However, the Adjudicator had earlier said the following:5 But I – but that – see, whether or not you have the money doesn’t make any difference to the order I make. My order is based on the application of Mr Gleeson’s association, and consideration of his claim, and consideration of your evidence in relation to the claim. You don’t have a defence to the claim. Whether you – whether you can pay or not doesn’t enter into the equation, sir. Okay? [16] At the hearing below, Mr Abdelrazek raised various matters including his poor health, his poor financial position, and that he did not know what the ‘service fees’ were,6 that he did not have money to build a home on the land the subject of the MCD Application, and that in the circumstances he did not understand what services were provided for the membership fees. He also stated (of particular relevance, in my view):7 But if you look to his notice of overdue [indistinct] it says 15 after 14 days I have to pay [indistinct] dollars and a fine. After three 14 days I have to pay $23 as a fine, and also after – and after that I have to pay $55. I just meant in the last one, it’s $950. So it was the money, what I get from Centrelink, and also, I don’t want to proceed with that – that – that contribution, because I don’t get any service from them. I am - - - [17] When read in the context of the material filed in the MCD Application, I consider it apparent that the amounts referred to by Mr Abdelrazek as a ‘fine’8 concerned the amounts included in the Association’s Statements (in support of the claim) as ‘Arrears Notice Fee’. For example, in the Statement with a due date of 24 February 2022, there is a debit amount for such a fee of $55.00 on 9 November 2021 and an amount of $38.50 charged for such a fee on 6 August 2021. Four such fees in the amount of $38.50 also appear in the Statement with a due date of 14 July 2020, although there is a reversal entry of $38.50 that appears twice in the Statement. Four such fees of $38.50 also appear in a Statement included in Mr Abdelrazek’s material for the period 1 July 2017 to 17 May 2019. 4 At the hearing of the Appeal Application, each party stated that a request for reasons was not made by that party following the hearing below. 5 T1-13 lines 11-16. 6 T1-3 lines 21-23. 7 T1-10 lines 15-20. 8 I consider that this language used by Mr Abdelrazek arguably raised an issue of whether the fees charged amounted to a penalty. -- 7 of 11 -- 8 [18] Having regard to the Transcript and the material before the Adjudicator, I am satisfied that: (a) the Adjudicator proceeded on the basis that the whole of the amount of the primary claim comprised ‘membership fees’;9 and (b) the Adjudicator did not address the recoverability of the specific amounts identified as ‘Arrears Notice Fee’. [19] Mr Gleeson, the representative of the Association, identified sub-rule 7(7)(ii) of the Rules of the Association (Association Rules) as providing the basis for recovering the Arrears Notice Fees. That sub-rule provides that if membership fees are not paid within 14 days of the due date, the Association is entitled to recover the ‘cost’ of collecting overdue membership fees including but not limited to legal and debt collecting costs. Mr Gleeson also stated that the fees were charged by the Professional Manager engaged by the Association. [20] However, no evidence was placed before the Adjudicator (or before the Appeal Tribunal) of any agreement with the Professional Manager permitting the Professional Manager to charge an Arrears Notice Fee, nor was there any evidence that each such fee claimed by the Association was a ‘cost’ that had, in fact, been incurred and paid. In my respectful view, in these circumstances, Mr Abdelrazak was denied procedural fairness as a result of the Adjudicator’s failure to consider and address the issue of whether the Association had established an entitlement to recover each claimed Arrears Notice Fee. [21] Further, the Adjudicator awarded costs to the Association of $186.65. This amount comprised a filing fee of $71.65 and ‘service fees’ of $115.00. On my perusal of the Transcript, the Adjudicator did not invite any submissions from Mr Abdelrazak in relation to whether a costs order should be made against him (and did not provide reasons for the making of the costs order). This occurred in the following circumstances: (a) s 100 of the QCAT Act provides that: ‘Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding’; (b) s 102(1) of the QCAT Act provides that: ‘The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order’; (c) one of the relevant factors that the Tribunal may take into account is the financial circumstances of the parties to the proceeding (s 102(3)); (d) Mr Abdelrazak provided evidence of his poor financial situation including that he was fully dependent on Centrelink; (e) the ‘service fees’ comprised the cost of a bailiff to serve the MCD Application which was, as appears from the face of the bailiff’s tax invoice, served at the residential address of Mr Abdelrazak, and this address appeared on the Association’s Statements sent to Mr Abdelrazak (and there was no explanation as to why it was necessary to engage a bailiff to effect service); 9 See T1-2 lines 22-37; T1-3 lines 3-5; and T1-7 lines 26-36. -- 8 of 11 -- 9 (f) the amount awarded exceeded the stated amount of the bailiff’s tax invoice ($108.70) and, further, at least on the face of the invoice, such amount appears to be in excess of the amount permitted to be awarded by virtue of rule 84 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (the Tribunal Rules) and schedule 2, part 2 of the Uniform Civil Procedure (Fees) Regulation 2019 (Qld).10 [22] I as respectfully consider that Mr Abdelrazak was also denied procedural fairness insofar as he was not given an opportunity to make submissions in relation to costs, in circumstances where there was at least a sound basis for applying the ‘default position’11 as to costs provided for by s 100 of the QCAT Act (and, in any event, where the amount allowed by the Adjudicator for ‘service fees’ is apparently in excess of the amount allowed under the relevant legislation). [23] Given the separate instances of what I consider to be a denial of procedural fairness, I am of the view that leave to appeal should be granted and the Decision set aside. I will address the appropriate orders to be made below. [24] For completeness, I will address other matters as raised by Mr Abdelrazak on the Appeal Application. [25] With respect to the complaint that the Adjudicator did not allow Mr Abdelrazak to ‘withdraw’ from his membership of the Association, I consider that this was not a matter in respect of which the Adjudicator had power to make any such order. I consider that it is a matter for Mr Abdelrazak to resign (or at least purport to resign) his membership of the Association in such manner as may be required or permitted by law. I express no view as to whether or not, in that event, Mr Abdelrazak would be lawfully bound by the requirements of Rule 9 of the Association Rules in the manner submitted by the Association at paragraphs 20 to 27 of its written submissions. [26] With respect to Mr Abdelrazak’s reliance on his financial position and his poor health, whilst I consider that those matters were relevant (at least in relation to the financial circumstances) to a consideration of whether a costs order should be made, I am of the view that such matters did not provide an arguable basis for resisting the Association’s primary claim. [27] A further matter raised by Mr Abdelrazak is that he did not receive any services from the Association in circumstances where his land at Pacific Harbour is vacant land (and has not been built upon) and where he lives many kilometres away. At the hearing below, Mr Gleeson stated that the Association pays the local Council over and above the ‘rates income’ to maintain the Council land within the Pacific Harbour estate to a ‘higher standard’. Mr Gleeson provided examples such as doing joint ventures with the Council to implement extra park equipment and facilities which the Council would not otherwise have done, as well as replacing a palm tree.12 The Objects of the Association are stated in the Association Rules as including the object ‘to maintain, repair, water, tend, beautify and/or improve’ the property within or adjacent or neighbouring the Pacific Harbour development (Association Rule 3(1)). It seems apparent to me that Mr Abdelrazak did not understand the nature of the activities undertaken by the Association and the role that it performs. Mr Abdelrazak seemed to believe that it was necessary for his own land to be directly benefitted in order to 10 This Regulation replaced the Uniform Civil Procedure (Fees) Regulation 2009 on 30 August 2019. 11 See CH v Queensland Police Service [2021] QCATA 137, [6] (Judge Allen QC, Deputy President). 12 T1-6 lines 3-25. -- 9 of 11 -- 10 receive any benefit as a member of the Association. In my view, the absence of any direct benefit to Mr Abdelrazak’s land did not, of itself, provide a ground to refuse payment of membership fees that were otherwise owing by him. [28] Mr Abdelrazak also complains about the Adjudicator’s conduct, contending that the Adjudicator had ‘instructed’ him to sell the land. The relevant exchange was at T1-32 line - T1-11 line 3, and included a statement by the Adjudicator that ‘… if you do not have the money then you’re probably going to have to sell your block of land …’. In my view, the Adjudicator did not provide any instruction that the land was required to be sold; rather, that it may be necessary for Mr Abdelrazak to sell the land if he was unable to pay the amount claimed. When considered in context, I consider that the comment was not of such a nature as to sustain the complaints made by Mr Abdelrazak. It appears to boil down to a misunderstanding of what the Adjudicator was endeavouring to convey. The appropriate orders [29] A failure to afford procedural fairness is an error of law.13 [30] As noted above, I consider that leave to appeal should be granted (pursuant to s 142(3)(a) of the QCAT Act). [31] In all of the circumstances, I am of the view that it is appropriate to make an order, pursuant to s 146(c) of the QCAT Act, that the appeal be allowed, the Decision be set aside, and the matter be returned to a differently constituted Tribunal for reconsideration without the hearing of additional evidence. In making these orders, it is not intended to limit the legal argument that may be relied upon by either party at the hearing based on the evidence before the Tribunal. [32] As to the question of costs, the Appeal Tribunal may order, pursuant to rule 85 of the Tribunal Rules, that the Association pay to Mr Abdelrazak his filing fee for the Appeal Application of $100.00. It is appropriate that I give directions for the making of submissions by the parties as to such costs. [33] The formal orders are as follows: (a) leave to appeal is granted; (b) the appeal is allowed; (c) the decision of the Tribunal dated 27 May 2022 is set aside; (d) the matter is returned to a differently constituted Tribunal for reconsideration without the hearing of additional evidence; (e) within 14 days of the date of these orders, the parties shall file with the Tribunal, and serve on the other party, a copy of written submissions, no longer than 5 pages, on the question of costs of the Application for leave to appeal or appeal filed on 22 June 2022; (f) each party may, within 14 days of the date of receipt of the other party’s submissions on costs, file with the Tribunal, and serve on the other party, a copy of any written submissions in reply, no longer than 5 pages; 13 See e.g. IM v Adult Guardian and The Public Trustee of Queensland [2011] QCATA 114, [20]. -- 10 of 11 -- 11 (g) unless otherwise ordered by the Appeal Tribunal, the question of costs will be heard and determined on the papers, without an oral hearing. -- 11 of 11 --