McDermott v Chief Executive, Office of Liquor and Gaming Regulation

[2011] QCATA 65

CITATION: McDermott v Chief Executive, Office of Liquor and Gaming Regulation
[2011] QCATA 065

PARTIES:	Christopher McDermott (Applicant/Appellant)
v
Chief Executive, Office of Liquor and Gaming Regulation and Australian Leisure and Hospitality Group Ltd (ACN 067 391 511) (Respondents)

APPLICATION NUMBER:            APL058-11               

MATTER TYPE: Appeals

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON:   7 April 2011

DELIVERED AT:   Brisbane

ORDERS MADE:  Application for leave to appeal refused.

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – INTERLOCUTORY DECISION – where review of decision to grant a provisional commercial hotel licence – where interlocutory decision by a Senior Member to join the licensee as a party and to allow both respondents leave to be legally represented – where leave is sought to appeal that decision – where the decision to join a party and for legal representation is not a final decision – whether leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act 2009

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, cited

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. In September 2010 Mr McDermott filed an application to review a decision to grant a provisional commercial hotel licence to the Australian Leisure and Hospitality Group Ltd for premises at Bellbowrie.

1. On 10 December an interlocutory decision was made by a Senior Member of this Tribunal joining the licensee, Australian Leisure and Hospitality Group Ltd, as a party; and giving both respondents leave to be legally represented.

1. Mr McDermott seeks leave to appeal that decision. As his appeal arises from a decision that is not the Tribunal’s final decision in the matter, leave to appeal is necessary: QCAT Act, s 142(3)(a)(ii).

1. This Appeal Tribunal has previously held that an application for leave to appeal will not normally be granted for a putative appeal from an interlocutory decision[1] unless there is sufficient ground to doubt the correctness of the decision, and there would be substantial injustice if leave to appeal was not granted.[2]

   [1]        A decision that is not a final decision.

   [2]Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 at para 5; see also Westpac Banking Corporation v Klef Pty Ltd [1998] QCA 311.

1. It was also said, by the QCAT Appeal Tribunal, that where the interlocutory decision involves the exercise of a discretion, leave will not usually be granted unless a matter of general principle is involved, or one of the parties will suffer an injustice if the original decision is allowed to stand.[3] The learned Senior Member’s decision here involved the exercise of her discretion under both ss 42 (‘Joining Parties’) and 43 (‘Representation’) of the QCAT Act.

   [3]See Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 at para 6.

1. Mr McDermott argues that the Senior Member erred in law, and his submissions set out the mistakes he says she made.  They can be summarised as follows:

[a]    Failing to outline the objections of other objectors;

[b]    Wrongly finding the matter to be complex;

[c]    That the Chief Executive or his nominee did not personally apply for legal representation and the application was made by a legal representative;

[d]    Not ruling on when the law took effect;

[e]    Failing to take into account the Corporations Act 2001 (Cth);

[f]     Failing to properly apply the Liquor Act 1992 (Liquor Act);

[g]    Failing to apply other legal principles; and,

[h] Failing to advise the Chief Executive of errors in the Liquor Act.

1. Each of these can be shortly addressed, and shown to fall short of establishing grounds why leave to appeal should be given:

[a]    The rights of other parties are not, for present purposes, relevant;  

[b] The question of the complexity of the matter is specifically addressed by the learned Senior Member in her reasons at [31]. She explains why she believes the matter has some legal, and factual, complexity. There is no demonstrated or discernable error in the Senior Member’s decision in the application of the law on this ground.

[c]    Mr McDermott’s submission concerning the need for an application for leave to be legally represented to be made personally, and not through a legal representative, is plainly incorrect.  The right of a party to be represented in a hearing to make an application for legal representation, even if that leave is ultimately refused is not in question particularly where the party is a state agency.

[d] None of Mr McDermott’s other grounds have any substance. His references to the learned Member not ruling when the law took effect, on the application of Commonwealth law, other legal principles and any error he perceives in the Liquor Act are irrelevant. Any argument Mr McDermott may have about the law to be applied to the review itself is a matter for the final hearing, not the interim decision which is the subject of this leave to appeal application.

1. There is no demonstrated or discernable error in the Senior Member’s decision.  There is no question of importance about which a further argument and a decision of the Appeal Tribunal would be of public advantage.[4]  Leave to appeal is refused.

   [4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577.