The Bell Hotel Pty Ltd v Brisbane City Council

[2012] QCAT 320

CITATION: The Bell Hotel Pty Ltd v Brisbane City Council [2012] QCAT 320

PARTIES:	The Bell Hotel Pty Ltd trading as The Royal Mail Hotel
v
Brisbane City Council

APPLICATION NUMBER:   GAR206-12

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Sandra G Deane, Member

DELIVERED ON: 24 July 2012

DELIVERED AT: Brisbane

ORDERS MADE:    

1.   The application to review a decision filed 18 June 2012 is dismissed.

2.   The application to stay a decision is dismissed.

CATCHWORDS:

Application to review – internal review required in first instance – no jurisdiction

Application for stay – original decision superseded by review decision

Food Act 2006, ss 82, 236, 237, 239, 240, 241
Queensland Civil and Administrative Tribunal Act 2009, s 61

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

Background

1. The Bell Hotel Pty Ltd has applied to the Tribunal for a stay of the decision of the Brisbane City Council (the Council) dated 18 June 2012 made pursuant to section 82 of the Food Act 2006 (the Act) to cancel its Food Business Licence (the Decision).  The stay application was filed 18 June 2012.

2. The Bell Hotel Pty Ltd also applied to the Tribunal for a review of the Decision.  The review application was filed 18 June 2012.

3. On 20 June 2012 The Bell Hotel Pty Ltd applied to the Council for an internal review of the Decision under the Act[1] and to the Tribunal for an interim order to stay the Decision pending the Application to Stay filed 18 June 2012 being determined.

   [1] Sections 236,237, 238 Food Act 2006.

4. On 20 June 2012 the Tribunal granted an interim order staying the Decision until further order and directions were given for material to be flied in relation to the Stay application.

Legislation and Discussion

1. Section 236 of the Act provides that a review of a decision under section 82 of the Act must in the first instance be by internal review under section 237 of the Act.

2. Section 241 of the Act only provides a right to apply to the Tribunal for review of a review decision.

3. It follows therefore that the application for review filed 18 June 2012 must be dismissed as the Tribunal has no jurisdiction in respect of reviewing the Decision.  The Tribunal only has jurisdiction to review a review decision.

4. Section 239 of the Act provides that after reviewing the original decision, the reviewer must make a further decision (the review decision) to—

   a)confirm the original decision; or

   b)amend the original decision; or

   c)substitute another decision for the original decision.

5. If the review decision confirms the original decision, for the purpose of a review of the review decision by the Tribunal, the original decision is taken to be the review decision.[2]

   [2] Section 239(5) Food Act 2006.

6. Section 240 of the Act provides that if a person applies for review of an original decision the person may immediately apply for a stay to the Tribunal to secure the effectiveness of the review and any later review by the Tribunal.

7. This contemplates that the internal review application will be made prior to the stay application.  This was not the sequence of events in this case.

8. The Tribunal has power to waive procedural requirements under the Queensland Civil and Administrative Tribunal Act 2009 or an enabling Act, such as the Act.[3]  The Council has made extensive submissions and did not raise this procedural matter.  I therefore waive this procedural requirement.

   [3] Section 61 QCAT Act.

9. The period of the stay must not extend past the time when the reviewer makes a review decision about the original decision and any later period the Tribunal allows the applicant to enable the applicant to apply for a review of the review decision.[4]

   [4] Section 240(4) Food Act 2006.

10. The Council’s submissions set out that:

    a)an internal review of the Decision was concluded on 27 June 2012;

    b)the review decision was to confirm the Decision;

    c)written notice of the review decision was provided to The Bell Hotel Pty Ltd’s legal representatives.

11. The Decision is no longer operative as it has been superseded by the review decision of 27 June 2012.

12. It is therefore not appropriate to grant a stay of the Decision.

13. It is open to The Bell Hotel Pty Ltd to apply to the Tribunal for a review of the review decision and to apply for a stay of the review decision.

Order

1. The application to review a decision filed 18 June 2012 is dismissed.

2. The application to stay a decision is dismissed.