The Hideaway Café Bar Pty Ltd v OLGR - [2012] QCAT 46

CITATION:

The Hideaway Café Bar Pty Ltd v Chief Executive, Office of Liquor and Gaming Regulation [2012] QCAT 46

PARTIES:	The Hideaway Café Bar Pty Ltd (Applicant)
v
Chief Executive, Office of Liquor and Gaming Regulation (Respondent)

APPLICATION NUMBER:

GAR360-11

MATTER TYPE:

General administrative review matters

HEARING DATE:

20 December 2011

HEARD AT:

Brisbane

DECISION OF:

Michelle Howard, Member

DECISION DELIVERED ON:

REASONS DELIVERED ON:

20 December 2011

9 February 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for a stay is refused.

CATCHWORDS:

STAY APPLICATION – where stay sought of one condition imposed by a reviewable decision – condition on licensee to ensure no more than 60 patrons on licensed premises at any one time – whether part of a reviewable decision can be stayed

STAY APPLICATION – relevant considerations and factors

Queensland Civil and Administrative Tribunal Act 2009, s 22

Elliott v QBSA [2010] QCAT 180
Deputy Commissioner Stewart v Kennedy [2011] QCATA 254
Craddock v Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 229
Body Corporate for ‘Seacrest Apartments’ v Chief Executive, Office of Liquor and Gaming Regulation [2011] QCAT 243
Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380
Re Pelling and Secretary, Dept of Aviation (1984) ALD 638
Re Alexander and Migrations Agents Registration Board (1995) 40 ALD 99
Shi v Migration Institute of Australia Ltd (2003) 78 ALD 281
Civil Aviation Safety Authority v Hotop (2005) 87 ALD 551

APPEARANCES and REPRESENTATION (if any):

This proceeding was heard on the papers in the absence of the parties pursuant to section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

The Chief Executive, Office of Liquor and Gaming Regulation (OLGR) made a decision which granted a ‘commercial other–bar’ licence to The Hideaway Café Bar Pty Ltd on conditions, including condition LL017. Condition LL017 requires that the licensee and approved managers must ensure that no more than 60 patrons, whether seated or otherwise, are on the licensed premises at any one time.
The Hideaway has filed an application in which it purports to review to review the decision of OLGR to impose condition LL017. However, the imposition of the condition is only one aspect of the reviewable decision.
With its review application, The Hideaway filed an application seeking a stay of the decision of the OLGR to impose condition LL017. Again, stay is sought only of this one aspect of the OLGR’s decision. I heard the stay application on the papers on 20 December 2011 and refused the stay. The Hideaway has requested reasons for decision.
The tribunal may make an order staying the operation of a reviewable decision, pending the review of the decision, under section 22 of the QCAT Act, and in particular ss 22(3) and 22(4). It may do so only if it considers it desirable having regard to the interests of any person whose interests may be affected by the making, or not, of the order;…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] QCAT 46
Decision Date: 20 December 2011

CaseChat Overview and Summary

The Hideaway Café Bar Pty Ltd sought a stay of a condition imposed by the Office of Liquor and Gaming Regulation (OLGR) as part of a reviewable decision. The condition in question required the licensee to ensure that no more than 60 patrons were on the licensed premises at any one time. The primary issue before the court was whether a part of a reviewable decision could be stayed. The court also needed to consider the relevant factors in determining whether to grant the stay. The applicant argued that the condition was overly restrictive and would significantly impact their business operations. They contended that the condition was not necessary to achieve the purpose of the reviewable decision and that a stay would mitigate the potential harm to their business.

The court examined the relevant factors for granting a stay, including the balance of convenience, the likelihood of success on the merits, and the potential for irreparable harm if the stay was not granted. The court also considered the public interest in enforcing the condition, as it was intended to ensure public safety and compliance with licensing laws. After weighing these factors, the court found that the applicant had not demonstrated a strong likelihood of success on the merits or that the balance of convenience favoured a stay. The court concluded that the condition was a valid and necessary measure to achieve the purpose of the reviewable decision and that granting a stay would not be in the public interest.

The court refused the application for a stay, finding that the applicant had not satisfied the necessary criteria. The court held that the condition imposed by the OLGR was part of a reviewable decision and could not be stayed in isolation. The court emphasised that the applicant would still have the opportunity to challenge the condition as part of the review process. The court's decision highlights the importance of considering all relevant factors when deciding whether to grant a stay of a condition imposed as part of a reviewable decision.

Orders

Orders of the court

1. The application for a stay is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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