Julie Fogarty v Megan Calliste t/as Studio Star Photography Gold Coast
[2023] QCATA 17
•6 February 2023
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Julie Fogarty v Megan Calliste t/as Studio Star Photography Gold Coast [2023] QCATA 17
PARTIES:
JULIE FOGARTY (applicant/appellant)
v
MEGAN CALLISTE T/AS STUDIO STAR PHOTOGRAPHY GOLD COAST (respondent)
APPLICATION NO/S:
APL308-21
ORIGINATING APPLICATION NO/S:
MCDO 349/20
MATTER TYPE:
Appeals
DELIVERED ON:
6 February 2023
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member PG Stilgoe OAM
ORDERS:
1. Leave to appeal is refused.
CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the tribunal made orders for a respondent to be removed – where the tribunal made orders for the substituted respondent to refund the applicant costs under a contract for goods – whether the applicant should be allowed to appeal the decision to remove the original respondent on the basis of an error of fact.
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur [2005] QCA 294
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
Julie Fogarty was a client of Studio Star Photography Gold Coast since 2011. Megan Calliste was Ms Fogarty’s contact at Studio Star. Ms Fogarty engaged Studio Star in 2014 for a photoshoot of her daughter. While the photo shoot was free, payment was required for any photos ordered. She paid $1650 towards a $6000 photo package in instalments between May 2014-November 2016.
In June 2019, Ms Fogarty contacted Ms Calliste to cancel the order and request a refund because she had “lost faith” in their service. Ms Calliste replied to Ms Fogarty by email stating the amount was a non-refundable deposit. Her email signature had her listed as Director of Studio Star.
In 2020, Ms Fogarty applied for a refund of the money she had paid on the grounds that Studio Star “had not done any work”. She named both Ms Calliste and Studio Star as respondents.
After receiving a copy of the ASIC search for Studio Star, the tribunal found Ms Calliste was not listed as a proprietor of Studio Star. The tribunal removed Ms Calliste as a respondent and ordered Studio Star to refund the sum of $1650 to Ms Fogarty within 30 days.
Ms Fogarty says the decision to remove Ms Calliste as a respondent was an error.
Should an appeal be allowed?
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).
[2]Pickering v McArthur [2005] QCA 294 at [3].
Findings of fact by a tribunal will not usually be disturbed on appeal if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[3]
[3]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
The tribunal determined that there was no evidence that Ms Calliste was the proprietor of Studio Star. Her name did not appear on the ASIC search, and Ms Fogarty provided no other evidence to support her claim that Ms Calliste should be personally liable. The tribunal was not in error.
Order
Leave to appeal is refused.
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