Leavain Pty Ltd v Brisbane City Council
[2015] QCAT 365
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- Unreported Judgment
- Leavain Pty Ltd v Brisbane City Council[2015] QCAT 365
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Leavain Pty Ltd v Brisbane City Council[2015] QCAT 365
Leavain Pty Ltd v Brisbane City Council[2015] QCAT 365
CITATION: | Leavain Pty Ltd & Ors v Brisbane City Council [2015] QCAT 365 |
PARTIES: | Leavain Pty Ltd (First Applicant) Terrence Graeme Wilson (Second Applicant) v Brisbane City Council (Respondent) |
APPLICATION NUMBER: | GAR206-15 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | 15 September 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Member Howard |
DELIVERED ON: | 15 September 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
(ii) Terrence Graeme Wilson is the second applicant in the proceedings.
|
CATCHWORDS: | APPLICATION FOR STAY- FOOD BUSINESS LICENSING- where application for review of decision of local authority to cancel 4 food business licences- where history of non-compliance by licensees- where improvements made by licensees before cancellation- where review likely to be rendered nugatory if business ceases to operate pending review Food Act 2006 (Qld) s 240, s 241 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 22 Moreton Media Group Inc v DJAG [2015] QCAT 107 Music Kafe Pty Ltd v OLGR [2012] QCAT 217 |
APPEARANCES: | |
APPLICANT: | Mr J Ditton, solicitor, Cooper Grace and Ward appeared for the applicants, Leavain Pty Ltd and Terrence Graeme Wilson |
RESPONDENT: | Ms S Singh, in-house lawyer, appeared for the Brisbane City Council |
REASONS FOR DECISION
- [1]In decisions dated 7 August 2015 (‘the original decision’), the Brisbane City Council (‘BCC’) cancelled two Food Business Licenses (A004006359 and A004066986) in the name of Leavain Pty Ltd and two Food Business Licences (A004076588 and A004130889)[1] in the name of Terrence Wilson (who is a director of Leavain). Internal review of the cancellation decisions by BCC was sought. Under section 240 of the Food Act 2006 (Qld) (‘Food Act’), the Tribunal made orders staying the operation of the decisions pending completion of the internal review.
- [2]On 14 August 2015, the BCC confirmed the decisions to cancel the licences. On 2 September 2015, Leavain applied under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) for review of the decisions to cancel the licences and for a stay of the cancellation decisions.
- [3]The stay application was listed for hearing before me today. At the hearing of the stay application, an oral application was made for leave to amend the review application and the stay application to include Mr Wilson as an applicant. The BCC was unsurprised by the application and did not oppose it. Two of the licences concerned are in Mr Wilson’s name, and it is apparent from the material filed that the intention was to review all four of the cancellation decisions. I made orders granting leave to amend the applications to include Mr Wilson as an applicant.
- [4]Under the QCAT Act, the Tribunal may make an order staying the operation of a reviewable decision if a proceeding for review has started.[2] It may make the order only if it considers it ‘desirable’ having regard to the interest of any person whose interests may be affected; any submission of the decision-maker for the decision; and the public interest.[3] The Tribunal has also consistently held that the usual common law principles are applicable in determining stay applications.[4] Therefore, the Tribunal considers whether the applicant for the stay has an arguable case and if so, whether the balance of convenience favours the granting of the stay.
- [5]The primary arguments made by both parties are summarised. Leavain and Mr Wilson submit that the BCC placed undue emphasis on historical breaches of the Food Act in deciding to cancel the food business licences. They submit that at the time of cancellation, they had substantially and responsibly addressed issues raised. Further, the relatively minor issues most recently identified by BCC on 4 August 2015 have also been addressed and they argue would not alone justify cancellation. BCC submits that it must, in deciding whether to cancel a Food Business Licence, consider the compliance history of the licensee and also points to a prior prosecution against Mr Wilson which dated back several years.
- [6]On a review, the Tribunal must stand in the shoes of the decision-maker (in this case, BCC) and make the decision afresh. The purpose of the review is to produce the correct and preferable decision. On the basis of the current somewhat limited material, I accept that Leavain and Mr Wilson appear to have an arguable case that cancellation of the licences is not the correct and preferable decision.
- [7]Further, Leavain and Mr Wilson argue that if a stay is not granted the business will likely suffer irreparable damage as their customers will find other suppliers and may not return to it if it succeeds on review. Additionally, they says the staff of 17 employees and 10 contractors will be out of work or otherwise suffer financially. Therefore, they submit that if they are successful on the review application, that success would be rendered nugatory if the stay is not granted.
- [8]The BCC submits that the main purpose of the Food Act is protect the public from licensees who fail to comply with its requirements. It submits that as there have been repeated failures by the applicants to comply, that it can not be satisfied the applicants have the necessary skills and knowledge to hold food business licences. While acknowledging that there have been no issues concerning contaminated food and that improvements have been made by the applicants, it says the public interest in ensuring food safety override the matters raised by Leavain and Mr Wilson.
- [9]I must balance the competing interests of Leavain’s and Mr Wilson’s financial detriment and the detriment to their employees and others and the prospect of rendering the review process nugatory, against the public interest in food safety. The main purposes of the Food Act include ensuring food for sale is safe and suitable for human consumption and applying the food standards code. Licensing of food businesses is an important part of achieving those purposes. However, there are no issues of food contamination. It is conceded by BCC that required improvements have been substantially made by Leavain and Mr Wilson. In the circumstances, I am satisfied that it is desirable to stay the effect of the cancellation orders until a decision is made on the review application, so as not to potentially render any successful outcome in the review process ineffective. I make orders accordingly.
- [10]Of course, if concerns arise about food safety before a decision is made on the review application, the BCC can apply at any time for orders to revoke the stay order.
Footnotes
[1]BCC informed the Tribunal that the number of this Food Business Licence was changed from A003874546. It is referred to in some of the documents by the previous number.
[2]QCAT Act s 22(3).
[3]Ibid s 22(4).
[4]Music Kafe Pty Ltd v OLGR [2012] QCAT 217; Moreton Media Group Inc v DJAG [2015] QCAT 107.