Techno Protective Security Services Pty Ltd v Brisbane City Council
[2012] QCAT 699
•22 October 2012
| CITATION: | Techno Protective Security Services Pty Ltd v Brisbane City Council [2012] QCAT 699 |
| PARTIES: | Techno Protective Security Services Pty Ltd t/as Indian Odyssey |
| v | |
| Brisbane City Council, Environmental Health Unit |
| APPLICATION NUMBER: | GAR344-12 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Kerrie O'Callaghan, Senior Member |
| DELIVERED ON: | 22 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Decision of Brisbane City Council, Environmental Health Unit dated 12 October 2012 is stayed until seven (7) days after the determination of the internal review. |
| CATCHWORDS: | STAY – APPLICATION PENDING REVIEW – where stay was granted Food Act 2006, s 240 Bein and Anor v Brisbane City Council [2012] QCAT 409 |
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 (QCAT Act).
REASONS FOR DECISION
On 12 October 2012 the Brisbane City Council cancelled the Food Business Licence of Techno Protective Security Services Pty Ltd (“Techno Services”).
Techno Services applied to the Tribunal for a stay of the Council’s decision under section 240 of the Food Act 2006. Such a stay will suspend the operation of the Council’s decision pending an internal review.
On 22 October 2012 I granted the stay. The Brisbane City Council has asked for reasons for the decision.
Section 240 provides that “the applicant may immediately apply, as provided under the QCAT Act, to QCAT for a stay of the decision.”
Section 22 of the Queensland Civil and Administrative Tribunal Act 2009 states that the Tribunal may make an order to stay the operation of a decision if it considers it desirable having regard to:
1. The interests of any person whose interests may be affected by the making of the order or the order not being made;
2. Any submissions made by the Council;
3. The public interest.
Factors weighing against the granting of a stay:
1. Techno Services since July 2010 has been found to be in contravention of the Food Standards Code on 6 occasions (on one of these occasions Council delegates attended twice in the one day). These have been in relation to cleaning and animals and pests.
2. Techno Services has received a zero star rating from Council Officers under the Eat Safe Brisbane Scheme on 4 occasions since July 2010.
3. Techno Services' continual breaches suggest a lack of food safety skills and knowledge, and an inability to continuously manage the business in a compliant way.
4. The purpose of the Food Act 2006 and the Food Safety Code is to ensure food for sale is safe and suitable for human consumption.
5. The Council submits that public interest of ensuring food is safe and suitable for consumption is greater than Techno Service’s personal interests, including their financial interests.
Factor’s in favour of the granting of a stay:
1. Techno Services has taken significant steps to address concerns raised by the Council, including replacing equipment, implementing practices and procedures to address concerns (including a daily cleaning checklist) and engaging professional services and other strategies to combat rodents and pests.
2. Techno Services has business expenses including rent. Ceasing trading will affect not only the interests of Techno Services but also employees.
The Tribunal must form a positive view that the making of a stay order is desirable.[1]
[1]Elliot v QBSA [2010] QCAT 180 as cited in The Bell Hotel Pty Ltd v Brisbane City Council [2012] QCAT 435, [7].
Despite their history Techno Services has presented evidence that they have implemented practices and procedures to address cleanliness.[2] They have also provided information on actions that have been taken to address issues with animals and pests.
[2] Indian Odyssey – Business Plan and Operating Guidelines.
The actions taken by Techno Services address public interest considerations and concerns raised by the Council. This is not a finding that the actions taken adequately address all issues raised and is not a final decision on the matter – that is not the nature of a stay. Rather, the Tribunal is satisfied, having regard to concerns raised, the actions taken to address these concerns and the impact of ceasing trading, that the granting of a stay is desirable.
The Tribunal may specify what period the stay will operate for. The period specified must not extend past any later period the Tribunal allows for Techno Services to apply for a review of the Council’s decision on the internal review.[3]
[3]Food Act 2006, s 240; see also Bein and Anor v Brisbane City Council [2012] QCAT 409 and The Bell Hotel Pty Ltd v Brisbane City Council [2012] QCAT 320.
The Tribunal ordered that the decision of Brisbane City Council, Environmental Health Unit dated 12 October 2012 is stayed until seven (7) days after the determination of the internal review.
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