Brisbane Art Workshops v Rosengren [2012] QCATA 162

CITATION: Brisbane Art Workshops v Rosengren [2012] QCATA 162 PARTIES: Brisbane Art Workshops ABN 83143669087 (Applicant/Appellant) v Linda Rosengren (Respondent) APPLICATION NUMBER: APL398-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 21 August 2012 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS: Minor Civil Dispute – where no error identified – where conclusions open on the evidence Queensland Civil and Administrative Tribunal Act 2009, s 142(3) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Fox v Percy [2003] 214 CLR 118 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 4 -- 2 REASONS FOR DECISION Background [1] Ms Krisstie Byrnne is the Director of Byrnne and Morrison Enterprises Pty Ltd. Byrnne and Morrison Enterprises Pty Ltd trades as Brisbane Art Workshops ABN 83143669087. [2] Brisbane Art Workshops advertised a course which would be taught by Terry Bouton in the Alla Prima Style. The course was to commence in February 2011. Ms Linda Rosengren enrolled in the course and paid a fee of $861.87. [3] On the 10 February 2011 Ms Byrnne advised students that Terry Bouton would not be able to teach the course. She informed students that she would teach the course herself and a guest teacher, Penelope Gilbert-Ng would teach some portraiture classes. [4] Ms Rosengren had already participated in an art course taught by Ms Byrnne the previous year, for this reason she suggested a partial refund be given of the course fee and she only participate in the other part of the course. Ms Byrnne did not accept the compromise. Emails and phone calls were exchanged. [5] Ms Rosengren then requested a full refund and did not attend the course. Ms Byrnne refused to refund any monies to Ms Rosengren for the course. [6] On the 15 of March 2011 Ms Rosengren filed a minor civil dispute claim in the Tribunal to recover the money paid for the course from Ms Byrnne. [7] The matter came on for hearing on 25 August 2012 and the Tribunal ordered that further submissions be filed and the decision was reserved. The decision was delivered on the 20 October 2011. The Tribunal ordered the money was to be refunded. [8] The Tribunal found that the identity of the teacher of the course was an essential element of Ms Roentgen’s decision to enrol and also that Ms Byrnne used the identity of the teacher to attract students. The identity of the teacher was an essential term of the contract between the parties. [9] The learned Adjudicator found that clauses 7 and 16 of the return policy did not apply in the circumstances. Clause 7 allowed for an alternative teacher to teach a class where the advertised teacher was not available and clause 16 prevented refunds where a student simply had a change of mind. [10] The learned Adjudicator found that as an essential condition of the contract had not been met, the contract failed and Ms Rosengren was entitled to the money she had paid in course fees. The Adjudicator ordered Ms Byrnne to pay Ms Rosengren the sum of $912.87 for her claim and filing fee. -- 2 of 4 -- 3 [11] On the 9 November 2011 Ms Byrnne filed an application for leave to appeal with the Tribunal. [12] Leave to appeal will ordinarily be granted where the Applicant can show that there is a reasonably arguable case that there was an error in the primary decision;1 or the applicant has a reasonable prospect of obtaining further substantive relief;2 or leave is necessary to correct a substantial injustice;3 or there is a question of general importance upon which, further argument and a decision by the Appeal Tribunal, would be to the public advantage.4 [13] The Applicant has filed voluminous submissions in support of the application for leave most of which are misguided. They include: the learned Adjudicator should be joined as a party to the proceeding; other persons should be joined as parties; a request that the Tribunal make parties admit statements; submissions suggesting that there is some conspiracy going on within the Tribunal of which the Respondent had the benefit. All of these matters have no bearing on the appeal. The Appeal Tribunal is only concerned with the issues before the original Tribunal, the evidence led in support of those issues and the applicable law. The Appeal Tribunal is not the place to re-ventilate the primary issues but to determine if there has been error. [14] The Applicant has referred to comments made by learned Adjudicator in his judgement.5 Some of these submissions allege that the learned Adjudicator was giving evidence and testifying. However, it is readily apparent that these comments are findings of fact he was obliged to make because of the contest between the parties. Findings of fact will not be overturned by the Appeal Tribunal unless it can be shown that these conclusions were not open on the evidence given at the original hearing. Here, clearly they were and the applicant has been unable to demonstrate to the contrary. The learned Adjudicator had a choice of whether to accept the evidence of the Applicant or the Respondent and come to a conclusion about the matter before him based on the evidence he preferred. It is not for the Appeal Tribunal to determine where the truth lies between the versions of the two parties.6 [15] To clarify the issues and address some of the Applicant’s submissions it is important to address the Adjudicator’s findings regarding the teacher’s identity as a condition and the applicability of clause 7 and 16. [16] With respect to the issue about the essentiality of the identity of the teacher, the learned Adjudicator accepted Ms Rosengren’s evidence that Mr Bouton’s expertise was what induced her to enrol in the course. That 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 2 Cachia v Grech [2009] NSWCA 232 at 2. 3 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 4 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. 5 Applicant’s submissions 100, 102-106 and 109. 6 Fox v Percy [2003] 214 CLR 118. -- 3 of 4 -- 4 conclusion was open on the evidence and does not warrant intervention by the Appeal Tribunal. On this basis, the Applicant’s submissions regarding the substituted teacher’s level of skill and ability to provide an acceptable level of teaching7 are not relevant as they are questions of fact rejected by the learned Adjudicator. [17] Once again the learned Adjudicator’s finding that clause 16, the return policy, had no application as an essential term of the agreement could not be met. The Applicant’s inability to satisfy the essential term related to the identity of the teacher and not to the skill level. Submissions regarding the skill level and adequacy of replacements teachers are misguided and fail to recognise that the essential term was the identity of the teacher and not the skill level of the teacher. [18] Similarly it was open for the learned Adjudicator to find that the circumstances fell outside of the intention of clause 7. Clause 7 states “Should a term class teacher be absent from class for any reason, then a suitable replacement teacher will be appointed during their absence”. The Applicant has submitted that this clause applied as the intention of the clause was to be broad, covering all circumstances that may lead to a teacher’s absence. This is based on a statement by the Applicant that was not before the Adjudicator at the time of the original decision. Despite the issue of new evidence, this evidence fails to refute the Adjudicator’s interpretation of the clause. The Adjudicator’s reasoning for the circumstances falling outside the intention of the clause was due to the length of the absence and the importance of the teacher’s identity, not the reasons for the absence, which is what the new evidence addresses. [19] I am not satisfied that there was an error in the primary decision nor any substantial injustice. Nor are any questions of general importance raised in the appeal. Therefore, leave to appeal is refused. 7 Applicant’s submissions 50-53, 54-87 and 99. -- 4 of 4 --