Julie Fogarty v Megan Calliste t/as Studio Star Photography Gold Coast

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.

CaseChat Overview and Summary

Julie Fogarty brought proceedings against Megan Calliste, trading as Studio Star Photography Gold Coast, before the Queensland Civil and Administrative Tribunal. The dispute arose from a contract for photography services, where the applicant alleged that the respondent failed to deliver the contracted services and breached the terms of the contract. Following a hearing, the tribunal made orders for the respondent to be removed from the proceedings and substituted with another respondent. The tribunal also made orders for the substituted respondent to refund the applicant's costs under the contract.

The primary legal issue before the tribunal was whether the applicant should be allowed to appeal the decision to remove the original respondent on the basis of an error of fact. The applicant argued that the tribunal had made an error of fact in removing the original respondent and that this error should be the basis for an appeal. The tribunal considered whether the error of fact alleged by the applicant was significant enough to warrant an appeal and whether the applicant had a reasonable prospect of success on appeal.

The tribunal found that the error of fact alleged by the applicant was not significant enough to warrant an appeal. The tribunal held that the applicant had not demonstrated that the error of fact had any bearing on the outcome of the case. The tribunal also found that the applicant did not have a reasonable prospect of success on appeal. The tribunal concluded that the orders made by the tribunal were in the best interests of justice and that there was no basis for an appeal. Therefore, the tribunal refused the applicant's application for leave to appeal.

Accordingly, the tribunal refused the applicant's application for leave to appeal the decision to remove the original respondent. No further orders were made.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established