GKE & Son Pty Ltd t/as Shuffle Nightclub v Commissioner of Liquor and Gaming Regulation

[2014] QCAT 254

CITATION:  GKE & Son Pty Ltd t/as Shuffle Nightclub
 v Commissioner of Liquor and Gaming Regulation [2014] QCAT 254

PARTIES:	GKE & Son Pty Ltd t/as Shuffle Nightclub (Applicant)
v
Commissioner of Liquor and Gaming Regulation (Respondent)

APPLICATION NUMBER: GAR159-14

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member Deane

DELIVERED ON: 11 June 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Until further order of the Tribunal the Commissioner of Liquor and Gaming Regulation’s decision to suspend GKE & Son Pty Ltd t/as Shuffle Nightclub’s licence is stayed.

CATCHWORDS:

APPLICATION FOR STAY – review decision – whether arguable case or real issues for determination – whether balance of convenience favours grant – whether success on review application would be ineffective

Liquor Act 1992 (Qld) s 137C
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 20, 22

Elliott v Queensland Building Services Authority [2010] QCAT 180

Deputy Commissioner Stewart v Kennedy [2011] QCATA 254
The Music Kafe Pty Ltd as Trustee for the Loukaras Family Trust and Anor v Chief Executive, Office of Liquor & Gaming Regulation [2012] QCAT 217

The Hideaway Café Bar Pty Ltd v Chief Executive, Office of Liquor and Gaming Regulation [2012] QCAT 46
Shi v Migration Institute of Australia Ltd (2003) 78 ALD 281
Civil Aviation Safety Authority v Hotop (2005) 87 ALD 551

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 (Qld) (QCAT Act).

REASONS FOR DECISION

1. GKE & Son Pty Ltd t/as Shuffle Nightclub (‘GKE & Son Pty Ltd’) has applied to the Tribunal for review of the decision of the Commissioner of Liquor and Gaming Regulation (‘the Commissioner’) to suspend its Commercial Other – Subsidiary on Premises Licence (‘Licence’) pursuant to s 137C of the Liquor Act 1992 (Qld) (‘the Act’) (‘the Decision’). The Decision is dated 14 April 2014.

2. GKE & Son Pty Ltd has also applied to stay the operation of the Decision pending determination of the review application.

3. Section 22 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that the Tribunal may after having regard to the factors set out in s 22(4) of the QCAT Act stay the operation of a reviewable decision if it considers it desirable to do so where a review proceeding has been commenced.

4. The Tribunal must form a positive view that the making of a stay order is desirable.[1]

   [1]Elliott v Queensland Building Services Authority [2010] QCAT 180.

5. The Tribunal must consider the interests of any person whose interests may be affected; any submission of the decision-maker for the reviewable decision; and the public interest.[2]

   [2]QCAT Act s 22(4)(c).

6. The Appeal Tribunal has found that in addition to the s 22(4)(c) factors other relevant factors to be considered in exercising the discretion include whether an arguable case has been shown by the applicant; whether the balance of convenience favours the granting of the stay; and whether the refusal of the stay would render success on the review ineffective.[3] In review matters the Tribunal has also described the first factor as whether there are ‘real issues for determination on the review application’.[4]

   [3]Deputy Commissioner Stewart v Kennedy [2011] QCATA 254.

   [4]The Music Kafe Pty Ltd as Trustee for the Loukaras Family Trust and Anor v Chief Executive, Office of Liquor & Gaming Regulation [2012] QCAT 217.

7. The Tribunal has previously considered the power to grant a stay should be considered as one of enabling preservation of the status quo, whether or not this involves granting or refusing the stay application.[5]

   [5]The Hideaway Café Bar Pty Ltd v Chief Executive, Office of Liquor and Gaming Regulation [2012] QCAT 46; Shi v Migration Institute of Australia Ltd (2003) 78 ALD 281; Civil Aviation Safety Authority v Hotop (2005) 87 ALD 551.

8. The Commissioner opposes the stay application on the grounds that:

   a)    GKE & Son Pty Ltd had not established that it had an ‘arguable case’ or that there were ‘real issues for determination’ or that it was ‘desirable’ because of the lack of evidence submitted;

   b)    having regard to the public interest the balance of convenience favours not granting a stay.

9. Since the Commissioner’s submissions were filed GKE & Son Pty Ltd’s director, Mr George Economous, has filed an affidavit in which he denies many of the factual matters relied upon by the Commissioner as particulars for the reasons for the Decision and provides some documentation to provide additional context to the circumstances leading to the Decision. I am not required to make a finding as to the truth or otherwise of the opposing contentions, that is a matter for determination of the review application in finding the correct and preferable decision.[6]

   [6]QCAT Act s 20.

10. I find that GKE & Son Pty Ltd has established that it has an ‘arguable case’ or that put another way there are ‘real issues for determination’.

11. There is evidence before the Tribunal that:

    a)    the lessor of the premises has issued a Notice to Remedy Breach in part in relation to the failure to ensure the premises are open for trade and other matters related to the Decision, which might give rise to a right to terminate the lease. I note there are other breaches relied upon, some of which relate to periods prior to the date of the Decision;

    b)    the business had been trading at a loss;

    c)    the obligation to continue to pay rent and other sums under the lease are still required to be observed whether or not the premises are open for trade and this will increase the losses as there will be no opportunity to trade profitably;

    d)    10 staff members have been stood down as a consequence of the Decision.

12. The Decision relies to a substantial degree on the risk of harm to the public.  Mr Economous’ affidavit challenges many of the facts relied upon by the Commissioner to contend that there is a significant risk of harm to the public.  He has given evidence from which I infer that since January 2014 up until the Decision additional security staff had been engaged and would continue to be engaged in the event the stay was granted to address some public safety issues.

13. If the stay is refused the lessor may take action to terminate the lease and so there is evidence that success on the review application may be ineffective as GKE & Son Pty Ltd may be unable to recommence trading.

14. I am satisfied that the balance of convenience favours granting the stay in the circumstances to preserve the status quo pending the outcome of the review proceeding and that it is desirable to do so.