Bein v Brisbane City Council

CITATION:

Bein and Anor v Brisbane City Council [2012] QCAT 409

PARTIES:	Thi Nhung Bein and Thieu The Nguyen trading as Mons Seafood (Applicant/Appellant)
v
Brisbane City Council (Respondent)

APPLICATION NUMBER:

GAR256-12

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Michelle Howard, Acting Senior Member

DELIVERED ON:

9 August 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The stay application is dismissed.

CATCHWORDS:

STAY APPLICATION – PENDING INTERNAL REVIEW – where internal review decision issued before stay application decided

Food Act 2006, ss 240, 241

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

In a decision dated 25 June 2012 (the original decision), the Brisbane City Council cancelled the Food Business Licence held by Thi Nhung Bein and Thieu The Nguyen who were trading as Mons Seafood.
The Food Act 2006 provides for a party to internally review an original decision to cancel a food licence[1] and for a party who has sought an internal review to immediately apply to QCAT for a stay of the original decision to secure the effectiveness of the review and any later review.[2] Under section 240 of the Food Act 2006, QCAT may stay an original decision for a period which must not extend past the time when the reviewer makes a review decision about the original decision and any later period allowed to enable an applicant to apply for a review of the review decision. If a person is dissatisfied with the review decision, they may in due course apply to QCAT for a review of the review decision.[3]
[1]        Food Act 2006, Chapter 9.
[2]        Food Act 2006, s 240.
[3]        Food Act 2006, s 241.
On 18 July 2012, the applicants applied to QCAT for a stay of the original decision and an interim order under section 58 of the QCAT Act.
The Tribunal made directions on 19 July 2012 for the filing of written material and submissions by the parties. Both applications were then to be determined on the papers, without an oral hearing.
On 24 July 2012, a decision was made by the Tribunal refusing the application for an interim order.
The stay application has now come to me for consideration. The Council’s submissions state that the internal review of the original decision was completed in a decision of 30 July 2012 (the review decision). A copy of the review decision, which confirmed the original decision, was provided by the Council.
Also, on 8 August, 2012, the applicants filed an application in the Tribunal to review the review decision.
Under section 240(4) of the Food Act 2006, any stay made can not extend past the time the review decision was made by the Council and any time allowed to enable the applicant to apply for review of the review decision. In this case, the review decision was made on 30 July 2012 and the review application was filed in the Tribunal on 8 August 2012.
Accordingly, the application for a stay of the original decision pending completion of the internal review has effectively been overtaken by events. There is no longer any basis under the Food Act 2006 for a stay of the internal decision to be granted for any period. The application for the stay of the original decision under section 240 of the Act must fail.
I make orders dismissing it.
For the sake of completeness, I make the observation that it is now open to the applicants to apply for a stay of the review decision should they wish to do so.

CaseChat Overview and Summary

The matter of Bein v Brisbane City Council involved a stay application that was lodged in the context of an ongoing internal review process. The applicant, Bein, sought a stay of the internal review process pending the determination of the stay application. The Brisbane City Council opposed the application. The case was heard in the Queensland Supreme Court.

The primary legal issue before the court was whether the stay application could be considered while an internal review decision had already been issued. The court needed to determine if the issuance of the internal review decision prior to the determination of the stay application had any bearing on the ability to grant a stay. The court also needed to assess whether there were grounds to grant the stay based on the merits of the applicant's arguments.

The court found that the issuance of the internal review decision before the stay application was determined did not preclude the court from considering the stay application. However, the court emphasised the importance of the applicant demonstrating that there were substantial grounds for granting the stay. The court concluded that the applicant had not demonstrated such grounds, as the internal review decision had already been made and was not subject to appeal or reconsideration. Consequently, the court dismissed the stay application.

The court's orders were straightforward: the stay application was dismissed. The court made no further orders, and the internal review decision remained in place. The applicant was not granted any relief in relation to the stay of the internal review process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established