The Bell Hotel Pty Ltd v Brisbane City Council
[2012] QCAT 435
•14 September 2012
| CITATION: | The Bell Hotel Pty Ltd v Brisbane City Council [2012] QCAT 435 |
| PARTIES: | The Bell Hotel Pty Ltd trading as The Royal Mail Hotel (Applicant) |
| v | |
| Brisbane City Council (Respondent) |
| APPLICATION NUMBER: | GAR263-12 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Sandra G Deane, Member |
| DELIVERED ON: | 14 September 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Until further order of the Tribunal the respondent’s decision to cancel the applicant’s food business licence is stayed. |
| CATCHWORDS: | Application for stay – review decision Food Act 2006, ss 8, 82 Queensland Civil and Administrative Tribunal Act 2009, s 22 Elliott v QBSA [2010] QCAT 180 The Hideaway Café Bar Pty Ltd v Chief Executive, Office of Liquor and Gaming Regulation [2012] QCAT 46 |
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
Background
The Bell Hotel Pty Ltd has applied to the Tribunal for review of the decision of the Brisbane City Council (the Council) to cancel its Food Business Licence (Licence) pursuant to section 82 of the Food Act 2006 (the Act) (the Decision).
The original decision to cancel the Licence was made on 18 June 2012. On 27 June 2012 after an internal review the Council confirmed its original decision.
The Bell Hotel Pty Ltd has also applied to stay the operation of the Decision pending determination of the review application.
On 26 July 2012 the Tribunal granted an interim order staying the Decision until determination of the stay application and directions were given for material to be filed in relation to the stay application.
Section 22 of the QCAT Act provides that the Tribunal may after having regard to the factors set out in section 22(4) of the QCAT Act stay the operation of a reviewable decision if it considers it desirable to do so where a review proceeding has been commenced.
The Council:
a)opposes the stay having regard to the history of non-compliance by the Applicant leading to a view that the Applicant is not a suitable person to hold a licence, concern about the Applicant and its director’s ability to maintain food safety at the premises and public interest.[1]
b)points to the main purposes of the Act which is to ensure food for sale is safe and suitable for human consumption; to prevent misleading conduct relating to the sale of food; to apply the food standards code.[2]
c)acknowledges that the Decision will impact on the interests of the Applicant, its director and employees but submits that there is a greater interest in ensuring the food prepared is safe for consumption.
[1] Section 22(4)(c) QCAT Act.
[2] Section 8 Food Act 2006.
The Tribunal must form a positive view that the making of a stay order is desirable.[3]
[3] Elliott v QBSA [2010] QCAT 180.
The Tribunal must consider the interests of any person whose interests may be affected; any submission of the decision-maker for the reviewable decision; and the public interest.[4]
[4] Section 22(4)(c) QCAT Act.
The Appeal Tribunal has found that in addition to the section 22(4)(c) factors other relevant factors to be considered in exercising the discretion include whether an arguable case has been shown by the applicant; whether the balance of convenience favours the granting of the stay; and whether the refusal of the stay would render success on the review ineffective.[5]
[5] Deputy Commissioner Stewart v Kennedy [2011] QCATA 254.
The Tribunal has previously considered the power to grant a stay should be considered as one of enabling preservation of the status quo, whether or not this involves granting or refusing the stay application.[6]
[6]The Hideaway Café Bar Pty Ltd v Chief Executive, Office of Liquor and Gaming Regulation [2012] QCAT 46; Shi v Migration Institute of Australia Ltd (2003) 78 ALD 281; Civil Aviation Safety Authority v Hotop (2005) 87 ALD 551.
Since the Decision was made the Applicant has been placed into the hands of receivers and managers. The Applicant is no longer in the control of its director.
There is evidence that:
a)the receivers and managers have taken steps to thoroughly clean the premises and to appoint a company to manage the business.
b)if the stay is refused the food and beverage business, the subject of the licence, will cease to trade.
c)the business employs about 40 people and those jobs will be in jeopardy with consequential loss of income and reduced ability by those people to meet their financial obligations.
The business ceasing to trade would also impact upon the interests of the secured creditor which appointed the receivers and managers.
There is evidence that before the Decision was taken the Applicant had taken significant steps to respond to the concerns of the Council. Whether those steps are sufficient is a matter for determination at the review hearing. There are some factual matters which appear to be contested. The resolution of those matters is also a matter for determination at the review hearing.
I am satisfied that there is an arguable case and that the balance of convenience favours the granting of a stay in the circumstances to preserve the status quo pending the outcome of the review proceeding.
Order
Until further order of the Tribunal the respondent’s decision to cancel the applicant’s food business licence is stayed.
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