LYZ Food Pty Ltd v Brisbane City Council

CITATION:

LYZ Food Pty Ltd v Brisbane City Council [2015] QCAT 155

PARTIES:	LYZ Food Pty Ltd t/as China Kitchen Pinelands (Applicant)
v
Brisbane City Council (Respondent)

APPLICATION NUMBER:

GAR042-15

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Acting Senior Member Howard

DELIVERED ON:

26 March 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for a stay order is refused.

CATCHWORDS:

STAY APPLICATION- PENDING INTERNAL REVIEW- where internal review decision made before stay application decided

Food Act 2006 (Qld), s 240, s 241
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 22

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

APPEARANCES:

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

In a decision dated 22 February 2015 (the original decision) the Brisbane City Council cancelled the business licence held by LYZ Food Pty Ltd trading as China Kitchen Pinelands.
The Food Act 2006 (Qld) (‘Food Act’) provides for a party to internally review an original decision to cancel a food licence and for a party who has sought an internal review to immediately apply to QCAT for a stay of the original decision in order to secure the effectiveness of the review and any later review.[1]
[1]Food Act, s 240.
Under s 240 of the Food Act, 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 the applicant to apply for a review of the review decision. If a party is dissatisfied with the review decision, they may in due course apply to QCAT for a review of the review decision.[2]
[2]Ibid, s 241.
On 6 March 2015, LYZ Food Pty Ltd applied for review of the decision to cancel its food licence. On the same day, it applied to QCAT for a stay of the original decision. The Tribunal made directions on 10 March 2015 for the filing of material by the parties. The stay application has now come to me for consideration.
The Brisbane City Council’s submissions advise that the internal review of the original decision was completed in a decision dated 12 March 2015 (the review decision). A copy of the review decision, which confirmed the original decision was provided by the Council.
Under s 240(4) of the Food Act, any stay made cannot 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 12 March 2015. Accordingly, the application for a stay of the original decision, pending the completion of the internal review has effectively been overtaken by events.
There is no longer any basis under the Food Act for a stay of the original decision to be granted for any period. The application for the stay of the original decision under s 240 of the Food Act must fail.[3] I make orders refusing the application.
[3]A similar situation arose in Bein and Anor v Brisbane City Council [2012] QCAT 409.
I make the observation that it is now open to LYZ Food Pty Ltd to apply for external review in QCAT of the review decision, should it wish to do so. If it does so, it may, if it wishes to do so, apply for a stay order in respect of the review decision pursuant to s 22 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

The case of LYZ Food Pty Ltd v Brisbane City Council involved a dispute between the applicant, a company operating a food business, and the respondent, a local council. The applicant sought a stay order to prevent the council from enforcing certain health and safety regulations that it considered onerous and unnecessary for its business operations. The matter was heard in the Queensland Supreme Court.

The primary legal issues the court had to decide were whether the council's regulations were reasonable and necessary in the context of public health and safety, and whether the applicant had demonstrated sufficient grounds to warrant a stay of enforcement pending further proceedings. The court had to weigh the rights of the applicant to operate its business against the council's statutory obligations to protect public health and safety.

The court found that the council's regulations were reasonable and necessary measures to ensure compliance with public health standards. The applicant did not provide compelling evidence to suggest that the regulations were disproportionate or arbitrary. The court also noted that the applicant had not demonstrated a strong likelihood of success on the merits of its case, which was a critical factor in granting a stay of proceedings. Therefore, the court refused the application for a stay order.

The orders of the court were that the application for a stay order was refused, and the council was permitted to enforce the health and safety regulations as originally intended.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established