Mount Cathay Pty Ltd v Queensland Fire and Rescue Service

[2014] QCAT 213

CITATION: Mount Cathay Pty Ltd v Queensland Fire and Rescue Service [2014] QCAT 213

PARTIES:	Mount Cathay Pty Ltd (Applicant)
v
Queensland Fire and Rescue Service (Respondent)

APPLICATION NUMBER: GAR011-14

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member O’Callaghan

DELIVERED ON: 6 March 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The application to stay a decision is refused.

CATCHWORDS:

Application to stay a decision – where interests of public safety outweighed applicant’s interests

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 22

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. Mount Cathay Pty Ltd is the registered proprietor of a commercial building (Waltons Building) in Fortitude Valley.

2. In December 2013 Queensland Fire and Rescue Services decided to issue Mount Cathay with:

   ·        An infringement notice for failing to maintain to a standard of safety and reliability a prescribed safety installation namely sliding fire doors; and

   ·        A notice detailing their obligations in relation to the Waltons Building as required by the Fire and Rescue Service Act 1990 (Qld).

3. Mount Cathay applied to the Tribunal to review the decision to issue the notices. It submitted that to issue the notices to it was incorrect as the relevant doors were in a walkway in the Walton Building which was occupied by a grantee of an easement. They said the grantee was responsible for maintaining the doors.

4. Mount Cathay also applied to stay the decision on the basis that the decision was ‘unjust, unreasonable and wrongful’.

5. In its submissions in support of the stay it said the decision was wrong in law because Mount Cathay was not the occupier of the easement walkway.

6. The Queensland Fire and Rescue Service opposed the stay. They submitted the issue of responsibility for maintaining the doors had already been considered in a Court of Appeal matter in which it was determined that the memorandum of grant of the easement imposed no obligations of maintenance or repair upon the grantee.

7. I made an order refusing the stay. The matter was subsequently resolved at a compulsory conference. Mount Cathay has nevertheless sought reasons for the refusal of the stay. These are those reasons.

8. The Tribunal has power to stay a decision the subject of review application if it considers it desirable to do so having regard to the interests of any person whose interests may be affected by the making or not making of the stay order.[1]

   [1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 22(3)-(4).

9. Unfortunately neither the applicant nor the respondent’s submissions dealt with this issue. They dealt only with the substantive issue on review that is whether the decision to issue the notice to Mount Cathay was correct in view of the existence of the easement.

10. The public interest in maintaining the fire doors is obvious. The notice directed to Mount Cathay alleges that the company failed to maintain the sliding fire doors to a standard of safety and reliability. The notice required an audit of the doors within the building to identify the defects and required remedial work.

11. It is not unreasonable to conclude that public safety may be at risk if the notice is not complied with. Mount Cathay have not identified any negative impact that they will suffer in complying with the notice but one can assume that the cost of compliance is an issue. In the absence of the identification of any specific adverse impact on Mount Cathay balancing the interest of public safety against the financial interests of Mount Cathay the interest of maintaining public and individual safety must prevail.

12. The Tribunal was not satisfied that it was desirable to make an order to stay the operation of the decision under review.