Polywell Pty Ltd t/as Golden Palace Chinese Restaurant v Brisbane City Council, Enviornmental Health/Compliance & Regulatory Services

[2015] QCAT 165

CITATION: Polywell Pty Ltd t/as Golden Palace Chinese Restaurant v Brisbane City Council, Enviornmental Health/Compliance & Regulatory Services [2015] QCAT 165

PARTIES:	Polywell Pty Ltd t/as Golden Palace Chinese Restaurant (Applicant)
v
Brisbane City Council, Enviornmental Health/Compliance & Regulatory Services (Respondent)

APPLICATION NUMBER: GAR344-14

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Acting Senior Member Howard

DELIVERED ON: 14 May 2015

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The application to strike out the review proceeding is refused.

2.    The Hearing in Brisbane at 9:30am on 1 June 2015 is confirmed.

CATCHWORDS:

Application for Strike Out – whether application lacking in substance

Food Act 2006 (Qld), s 56, s 57
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47

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

1. Polywell Pty Ltd trading as Golden Palace Chinese Restaurant (‘Polywell’) held a food business licence in respect of premises in Fortitude Valley. On 21 August 2014, the Brisbane City Council (‘BCC’) cancelled the food business licence number A003866465. BCC submits it cancelled the licence because of ‘a long history’ of non-compliance with the requirements. An internal review was conducted by the BCC and the decision confirmed in September 2014. Polywell then applied to the Tribunal for external review of the decision to cancel its food business licence.

2. In the meantime, Polywell onsold the business name Golden Palace Chinese Restaurant to another entity, which made application for, and was granted, a food business licence and has been operating since August or September 2014.

3. Under the Food Act 2006 (Qld) (‘Food Act’) only one food business licence can be issued for a food business. BCC has made application seeking to stike out the review application filed by Polywell on the basis that even if Polywell was successful in its review application, it would not and could not result in the issue of a food business licence to Polywell. In essence it argues that there is no utility in the application for review, and that it is therefore lacking in substance.

4. Polywell opposes the strike out application. Essentially it is concerned that if its review does not proceed, that Polywell may be disadvantaged in any future application for a food business licence because the cancellation decision will stand. It wants the opportunity to argue its case that the cancellation decision should be set aside.

5. If an application lacks substance, it may be struck out under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).[1]

   [1]QCAT Act s 47.

6. Under the Food Act, on an application for a food business licence, the local authority must be satisfied that the applicant is a suitable person to hold a licence.[2] In deciding whether an applicant is a suitable person to hold a licence the local authority may have regard to a number of specified factors, including, whether the applicant has held a licence under the Act that was suspended or cancelled.[3]

   [2]Food Act s 56.

   [3]Ibid, s 57.

7. If Polywell makes a future application for a food business licence, its history as a food business licence holder (including its non-compliance history) can be taken into account by the decision-maker whether or not the cancellation decision stands. However, because cancellation is specified as a matter which may be considered in determining suitability on any (future) application by Polywell, it seems to me that it cannot be said that there is no utility in the review proceeding.

8. Accordingly, the application for strike out which was filed by the BCC is refused.

9. The review proceeding has already been set down for hearing on 1 June 2015 commencing at 9:30am. The hearing of the review application is confirmed.