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

[2010] QCAT 279

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.