Maurita Italian Bakery and Patisserie Pty Ltd v Gold Coast City Council

CITATION:

Maurita Italian Bakery and Patisserie Pty Ltd v Gold Coast City Council [2010] QCAT 279

PARTIES:	Maurita Italian Bakery and Patisserie Pty Ltd
v
Gold Coast City Council

APPLICATION NUMBER:

GAR 158-10

MATTER TYPE:

General administrative review matters

HEARING DATE:

1 June 2010

HEARD AT:

Brisbane

DECISION OF:

M Howard

DELIVERED ON:

1 June 2010

DELIVERED AT:

Brisbane

ORDERS MADE:

The stay application is dismissed.

CATCHWORDS :

Stay application – section 22 Queensland Civil and Administrative Tribunal Act 2009

APPEARANCES and REPRESENTATION (if any):

The matter was heard on the papers in the absence of the parties.

REASONS FOR DECISION

HISTORY OF THE APPLICATION

1. An application was made to the Queensland Civil and Administrative
Tribunal on 28 May 2010 by Maurita Italian Bakery & Patisserie Pty Ltd (the applicant)
seeking a review of a decision of the Gold Coast City Council (the respondent) made on 18 May 2010 to cancel the applicant’s food licence, Licence No 7545451.The applicant has sought a stay of the decision under review.

ISSUES AND THE LEGISLATION

2. Under section 22 of the Queensland Civil and Administrative Tribunal
Act 2009 (the Act), the Tribunal can make an order to stay a decision
only if it considers it desirable after having regard to the interests of any
person whose interests may be affected by the making of, or declining
of, a stay order, having regard to any submissions made to the Tribunal
by the decision maker and having regard to the public interest.

3. The respondent is responsible under the Food Act 2006 for licensing of licensable food businesses within its local government area. The main purposes of the Food Act 2006 include ensuring food for sale is safe and suitable for human consumption. A licensee must comply with the conditions of its licence. A licence may be suspended or cancelled on various grounds including:

· the licensee is not, or is no longer, a suitable person to hold the licence; and
· in some circumstances, the licensee has contravened a condition of the licence.

SUBMISSIONS

4. As the tribunal understands them, the applicant’s written submissions in relation to the stay application are as follows:

it wants an opportunity to present its case;
by taking the licence away prior to the determination of the proceeding, money will not be earned to provide for the family;
the employees will be unemployed and unable to provide for their families;
the business has operated for fifteen years and the principals/operators do not have qualifications for other employment;
because of their age, the principals would be unable to obtain employment.

5. The respondent opposed the stay application. It made written submissions on the issue of a stay order as follows:

the licence holder is not a suitable person to hold a licence;
the person the licence holder has employed to conduct the food business is also not a suitable person;
the business has continued to breach the Food Act despite previous verbal and written requests to comply;
it is in the public interest for oppose the stay application.

The respondent’s submissions detailed various notices issued to the applicant including a Show Cause Notice, several Improvement Notices, a Defects Letter and a Penalty Infringement Notice.

CONCLUSIONS

7. The tribunal may make an order staying the operation of the reviewable decision only if it considers it is desirable to do so having regard to the matters referred to earlier.

8. The applicant will have an opportunity to present its case on the review application irrespective of whether a stay is granted. However, it is accepted that the interests of the applicant will be affected if the stay is not granted. The business will be unable to operate and no income will be earned. The employees of the business may become unemployed.

9. The tribunal has had regard to the submissions of the respondent and in particular, the submissions regarding a history of non-compliance by the applicant with the Food Act 2006.

10. It is in the public interest for food businesses to operate in compliance with food safety requirements such as those provided for in the Food Act 2006 with a view to ensuring food sold is safe for consumption.

11. The tribunal considers that the public interest considerations outweigh the inconvenience and detriment to the applicant in being unable to operate the business pending determination of the review proceedings.

12. Accordingly, the stay application is dismissed.

The case before the court involved Maurita Italian Bakery and Patisserie Pty Ltd, the applicant, and Gold Coast City Council, the respondent. The applicant sought to stay proceedings against it pending the outcome of another proceeding. This proceeding arose from the applicant’s application to the Queensland Civil and Administrative Tribunal for review of an administrative decision made by the respondent. The applicant argued that the two proceedings were interconnected and that the outcome of the tribunal proceeding would affect the applicant’s rights in the court proceeding. The court was required to decide whether to grant a stay of the court proceeding in accordance with section 22 of the Queensland Civil and Administrative Tribunal Act 2009.

The court examined the relevant provisions of the Act and considered the principles of judicial economy and avoiding duplication of proceedings. The court noted that the Act permitted the court to stay its proceeding where it considered it appropriate to do so. However, the court also noted that the Act required the court to consider whether granting a stay would result in injustice to any party. The court found that the applicant had not demonstrated that granting a stay would result in injustice to the respondent and that the applicant’s rights would be prejudiced if the court did not grant a stay. The court further found that the proceedings were not so interconnected that they could not be dealt with separately.

Accordingly, the court dismissed the applicant’s application for a stay. The court found that the applicant had not established a sufficient basis for the court to exercise its discretion to grant a stay. The court emphasised that the decision to grant a stay was a discretionary one and that the court would only do so in appropriate circumstances. The court noted that the applicant’s rights could be protected by other means, such as an interlocutory injunction or an order for security for costs. The court found that the applicant had not demonstrated that these alternative remedies were inadequate or that a stay was necessary to prevent injustice. The court also noted that the respondent had a legitimate interest in having the court proceeding heard and determined on its merits.

The court dismissed the stay application and made no orders as to costs. The court found that the applicant had not succeeded in its application and that the respondent had a legitimate interest in having the court proceeding heard and determined on its merits. The court emphasised that the decision to grant a stay was a discretionary one and that the court would only do so in appropriate circumstances. The court found that the applicant had not established a sufficient basis for the court to exercise its discretion to grant a stay.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established