The Hideaway Café Bar Pty Ltd v OLGR
[2012] QCAT 46
•20 December 2011
| 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 |
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; any submission of the decision-maker for the decision; and the public interest.
The submissions
The Hideaway submitted that it is the only person genuinely affected by the granting or not of the stay order. It contends that the impact on the community and surrounding area will be ‘almost imperceptible.’ The premises are in a commercial area dominated by existing licensed premises of larger capacity and longer trading hours than its premises. It says compliance with the condition pending the review will have a negative impact on its business activities and on those persons wishing to patronise the premises once the capacity of 60 has been reached. Business impacts are said to include employing an additional person to monitor numbers; dissatisfaction of persons waiting who perceive there is space for them to enter; inability to accept bookings for functions for over 60 persons; and turning away business which could be comfortably accommodated.
OLGR opposed the granting of a stay. It submitted that granting a stay would subvert the legislation and allow an unrestricted number of patrons on the premises. It argues that a 60 person patron limit for bar licences was intended and imposed by the amendments to the Liquor Act 1992 (the Act) which are contained in section 70.
It also submitted that there is no evidence of commercial or other hardship to The Hideaway, and that granting the stay would, in effect, financially disadvantage the 13 other licensees with bar licences, since all of them have been restricted to the same 60 person limit, it says, in accordance with the legislation. Further, it submits it would allow The Hideaway to trade more like a commercial hotel, the highest risk licence category under the Act, and without paying the fee applicable for a commercial hotel licence. It submits that the condition was necessary under section 107C(1)(a) to clarify the intention of section 70(1) and ensure compliance with the Act.
OLGR considers there is potential for the public to be adversely affected by increasing the maximum number of patrons because the assessment of the licence application was done on the basis of low risk licensed premises, including waiving advertising and not obtaining Police or Council comment on allowing more than 60 patrons. Finally, it argues that granting a stay regarding a condition designed to assist the licensee comply with the principal activity of the licence has wide potential ramifications on the ability for decision-makers to impose conditions under section 107C to ensure licensees trade within the bounds of the law and the Act’s objective of minimising harm.
The Hideaway made further submissions in reply. It argued that many of the issues raised by the OLGR are irrelevant to the consideration of the stay application, including issues relating to statutory construction and the OLGR’s consultation or otherwise with the local authority and Police. It took issue with the construction advanced by the OLGR. It suggests that although evidence of commercial hardship was not available at the time, that it is reasonable to apprehend commercial detriment as a result of the imposition of the condition. At this stage, it also filed a statutory declaration by a director of The Hideaway about events occurring since the granting of the license including several lost functions booking functions and patron dissatisfaction about waiting to re-enter after leaving for a cigarette said to be related to the 60 person limit. It disputes that if the stay is granted, it will be able to operate in a manner more akin to a commercial hotel and that there is potential for adverse effect to the public.
Discussion and decision
[10] The tribunal may, after having regard to the factors set out in section 22(4) of the QCAT Act, make an order to stay the operation of a reviewable decision if it considers it is desirable to do so. In exercising its discretion to grant a stay, the tribunal must form a positive view that the making of a stay order is desirable.[1] The matters which must be considered under section 22(4), are the interests of any person whose interests may be affected; any submission of the decision-maker for the reviewable decision; and the public interest.
[1] Elliott v QBSA [2010] QCAT 180.
[11] However, section 22(4) does not prevent the consideration of other relevant factors. The Appeal Tribunal has found that the standard curial principles also apply to govern the exercise of the discretion in addition to a consideration of those factors in s 22(4).[2] Other relevant issues 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 a favourable appeal decision nugatory.[3] In the circumstances of a merits review, the equivalent of the latter consideration might be whether refusal of the stay would render success on review ineffective.
[2] Deputy Commissioner Stewart v Kennedy [2011] QCATA 254.
[3] Deputy Commissioner Stewart v Kennedy [2011] QCATA 254.
[12] The considerations in determining a stay application in the administrative review context have been considered in the federal merits review jurisdiction which is exercised by the Administrative Appeals Tribunal (the AAT). In the AAT the test is whether a stay order is desirable, and is appropriate to secure the effectiveness of the review hearing and determination having regard to the interests of any persons who may be affected by the review.[4] ‘Desirable’ has been interpreted as requiring a positive aspiration.[5] The public interest has also been weighed against the interests of the applicant for the stay.[6]
[4] Administrative Appeals Tribunal Act 1975 (Cth), s 41(2).
[5]Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380.
[6] For example, see Re Pelling and Secretary, Dept of Aviation (1984) ALD 638.
[13] In this context, the power to grant a stay has been considered to be ‘negative’ rather than positive: in effect, stay orders may be granted to preserve the situation which existed prior to the making of the reviewable decision.[7] This has been interpreted by the Federal Court of Australia as enabling preservation of the status quo, whether or not this involves granting or refusing the stay application.[8]
[7] Re Alexander and Migrations Agents Registration Board (1995) 40 ALD 99.
[8]Shi v Migration Institute of Australia Ltd (2003) 78 ALD 281; Civil Aviation Safety Authority v Hotop (2005) 87 ALD 551.
[14] That is, if the reviewable decision is a decision to cancel a license, a stay may be allowed to preserve the status quo prior to the making of the reviewable decision in appropriate circumstances.[9] However, the power to make a stay order is not to place an applicant in a different, or changed, position from its position prior to the making of the reviewable decision. It seems to me that this is also a relevant matter when determining a stay application in the review jurisdiction of QCAT under the QCAT Act.
[9] Civil Aviation Safety Authority v Hotop (2005) 87 ALD 551.
[15] In this case, a stay is sought, not of the entire reviewable decision, but of one of the conditions imposed in the decision. The Hideaway does not apply for a stay of the entire reviewable decision: no doubt because it could not operate its business as licensed premises at all if a stay was granted to stay the reviewable decision in its entirety. I was not referred to any authorities to support the proposition that a selected part of a reviewable decision may be stayed. Having regard to the provisions of section 22, and in particular s 22(3) and 22(4), I cannot see any basis upon which the tribunal has power to grant a stay of part of a reviewable decision, as opposed to the reviewable decision in its entirety. The section seems plainly to anticipate only the stay of a ‘reviewable decision’, not selected parts of it. Therefore, the stay application must be refused.
[16] However, in the event that I am wrong about the tribunal’s power to stay a selected part of a reviewable decision, I would also consider that the stay should be refused if power exists to stay part of a decision for the following reasons.
[17] Both parties make some arguments relating to the construction of the legislation. The Hideaway argues that OLGR misconstrued the Act. It is not for me to decide, on this stay application, whether condition LL017 has been imposed in accordance with the legislation: that and other issues will be considered on determination of the review application. However, it is relevant whether The Hideaway has demonstrated that it has an arguable case. I accept that it has shown that there are real issues for determination on the review application.
[18] Turning then, to consider the competing interests in the proceeding. Unlike the situations in Craddock v Chief Executive, Department of Employment, Economic Development and Innovation[10] or Body Corporate for ‘Seacrest Apartments’ v Chief Executive, Office of Liquor and Gaming Regulation,[11] the granting or refusal of the stay will not render The Hideaway either, respectively, without an income or paying rent for premises it cannot use and thereby in a position of significant financial hardship.
[10] [2010] QCAT 229.
[11] [2011] QCAT 243.
[19] In this case, The Hideaway has a license, and is operating its business, albeit subject to condition LL017. It says that compliance with the condition will have a negative impact on its commercial activities. Although I can accept that the condition affects the operation of the business to some extent, I am not satisfied that it is reasonable to apprehend significant commercial detriment or hardship on the basis of the material before me.
[20] OLGR submits that the interests of the 13 holders of other licences subject to the same condition are relevant. The Hideaway says that they will be unaffected by the making of a stay or not: their licence conditions will be unaffected. If it is suggested by OLGR that they are direct commercial competitors of The Hideaway and thereby disadvantaged if a stay is granted, this is not clear and, in any event, is not established on the material before me. I am not satisfied on the material that the interests of those other licence holders will be affected by the granting, or not, of the stay.
[21] The Hideaway contends that the community and surrounding vicinity of the premises, which are located in a commercial area dominated by licensed premises, is unlikely to be significantly affected if the stay is granted. However, OLGR has not assessed the premises for greater numbers of patrons than the condition allows. Potential adverse effect is argued by OLGR. The potential risks of allowing an indeterminate number of persons to attend at the Hideaway’s premises have not been considered. I accept that this is a matter affecting the public interest.
[22] In my view, the balance of convenience tips in favour of the refusal of the stay.
[23] Further, in the circumstances of the proceeding, if The Hideaway succeeds in its review application, refusal of the stay application would not render that success nugatory and so is not necessary to secure the effectiveness of the review.
[24] Finally, if granted, the stay order sought would place the applicant in a different position than before the reviewable decision was granted. Before the reviewable decision, The Hideaway did not have a license and could not operate as licensed premises. Therefore, a stay order in the terms sought, that is, for a stay of the operation of one condition rather than for the stay of the entire reviewable decision, would place The Hideaway in a different position than it was in before the reviewable decision was made. Such an outcome from the exercise of the tribunal’s discretion would be inappropriate.
[25] Accordingly, I would not, in any event, be satisfied that it is desirable to grant a stay to The Hideaway.
[26] Accordingly, I make orders refusing the stay application.
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