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Polywell Pty Ltd t/as Golden Palace Chinese Restaurant v Brisbane City Council, Environmental Health/Compliance & Regulatory Services QCAT 221
Polywell Pty Ltd t/as Golden Palace Chinese Restaurant v Brisbane City Council, Environmental Health/Compliance & Regulatory Services  QCAT 221
Polywell Pty Ltd t/as Golden Palace Chinese Restaurant
Brisbane City Council, Environmental Health/Compliance & Regulatory Services
General administrative review matters
24 July 2015
30 October 2015
3 March 2016
7 July 2016
GENERAL ADMINISTRATIVE REVIEW – Food Act 2006 (Qld) – where review of decision to cancel Food Business Licence – where regulatory history, earlier licence cancellation and criminal conviction – whether applicant is suitable person to hold a Food Business Licence
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19, 20, 24, 60, 72
Food Act 2006 (Qld) ss 14, 57, 78, 82, 241, sch 3
Australia New Zealand Food Standards Code, 3.2.1, 3.2.2, 3.2.3
The Body Corporate for Rosegum Villas v Queensland Building and Construction Commission  QCAT 588
Chief Executive, Department Tourism, Fair Trading and Wine Industry Development v 4 Play (Oz) P/L  QCA 267
Australian Broadcasting Tribunal v Bond (1990) CLR 321
Polywell Pty Ltd represented by
Brisbane City Council represented Mr K.D. Cartledge of the Brisbane City Legal Practice
REASONS FOR DECISION
- The Golden Palace Chinese Restaurant is situated in Brisbane’s Fortitude Valley and until recently, was owned and run by Polywell Pty Ltd who held a Food Business Licence for the premises.
- On 21 August 2014, the Brisbane City Council cancelled the restaurant’s Food Business Licence citing a long history of repeated breaches.
- After this cancellation, Polywell sold the business to another company (not a party to these proceedings). That company obtained a Food Business Licence and has been operating the restaurant since then. The directors of Polywell have been managing the restaurant since the change of ownership.
- The Council says there has been a long history of the Council receiving complaints about the conduct of the food business at this restaurant. A Food Business Licence first issued to Polywell for this restaurant on 16 February 1996.
- The Council says from February 1997, it received numerous complaints about the conduct of this food business. Inspections by the Council revealed problems such as food service equipment being stored in toilets, live and dead rodents in the premises and poor food storage. Council audits also revealed poor temperature controls, lack of cleaning, waste removal issues and lack of maintenance and pest controls.
- A show cause notice issued to Polywell after the Council says were many failures to meet food safety standards. Polywell responded to these concerns, but a further inspection of the premises by the Council in August 2012 still revealed problems and an ‘information notice – licence cancelled’ was issued to Polywell that month.
- Polywell continued to trade and sought an internal review of the decision to cancel the licence.
- An internal review as carried out but on 18 September 2012, the Council confirmed the original decision to cancel the business food licence.
- Polywell made a further application for a conditional food licence. This was refused by the Council on 5 November 2012. A further internal review requested by Polywell confirmed the original decision by the Council on 26 November 2012. Polywell reviewed this decision to QCAT in December 2012.
- After attending a compulsory conference at this Tribunal, the Council offered Polywell a provisional licence, conditional upon regular inspections. This provisional licence issued on 9 May 2013. Polywell says it then received a four star rating under the Eat Safe Brisbane Scheme. This rating was confirmed in a second inspection on 17 June 2013.
- On 15 July 2013 the Council undertook a third and final inspection. The business was given a three star rating under the Eat Safe Brisbane Scheme.
- On 24 July 2013, a Food Business Licence again issued to Polywell.
- On 8 July 2014 the Council carried out another audit of the premises. The Council found further issues with food processing, cleanliness, maintenance and pests. The business was downgraded under the Eat Safe Brisbane Scheme to a two star rating.
- On 10 July 2014 a further show cause notice was issued to Polywell and in August 2014 representations were made by Polywell in response to that notice.
- The Council says a further audit was undertaken on 14 August 2014 and continuing issues with food processing, cleanliness and maintenance were found. The business was further downgraded under the Eat Safe Brisbane Scheme to a zero star rating.
- On 21 August 2014 an ‘information notice – licence cancelled’, again issued to Polywell. Polywell requested an internal review which was undertaken by the Council.
- On 26 September 2014, the Council upheld the original decision to cancel the food business licence.
- On 23 October 2014, Polywell applied to QCAT to review this decision. In doing so, Polywell seeks the following orders:
- (a)A declaration that the decision of Brisbane City Council Officer Liam Story on 21 August 2014 to cancel the Food Business Licence of Polywell Pty Ltd in respect of the Golden Palace restaurant premises at Level 1, Chinatown Mall, corner Ann and Duncan Streets, Fortitude Valley, Brisbane is set aside on the grounds that the decision-maker took account of irrelevant considerations and failed to take account of and give due weight to relevant considerations;
- (b)A declaration that upon a re-examination of all the relevant facts and circumstances, the appropriate decision on 21 August 2014 would have been not to cancel the Food Business Licence of Polywell Pty Ltd in respect of the Golden Palace Chinese Restaurant premises at Level 1, Chinatown Mall, corner of Ann and Duncan Streets, Fortitude Valley, Brisbane;
- (c)A declaration that upon a re-examination of all the relevant facts and circumstances, Polywell Pty Ltd should be granted a Food Business Licence in respect of the Golden Palace Chinese Restaurant premises at Level 1, Chinatown Mall, corner of Ann and Duncan Streets, Fortitude Valley, Brisbane;
- (d)A declaration that the said premises are Food Safety Compliant and Food Safety suitable;
- (e)A declaration that Polywell Pty Ltd is a fit and proper person to hold a Food Business Licence;
- (f)A declaration that Siu Yuk Ng and Kam Hung Wong are fit and proper persons to hold a Food Business Licence;
- (g)An order that the Brisbane City Council grant Polywell Pty Ltd a new Food Business Licence conditional upon the surrender of the existing Food Business Licence in favour of Winco Pty Ltd.
- The purpose of a review by the Tribunal is to produce the correct and preferable decision. To achieve this, the Tribunal must conduct a fresh hearing on the merits. In considering the matter afresh, it is the Tribunal’s function to review the decision, not the process by which it was arrived at nor the reasons for it. The Tribunal is not required to identify any error in either the process or reasoning that lead to the decision being made. There is no presumption the original decision is correct.
Declaratory Orders Sought by Polywell
- As well as orders under section 24(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), Polywell seeks declarations under s 60(1)(b) of that Act to ensure a license is re-issued to Polywell. This is because currently, Polywell has no business.
- The Council agrees that Council could issue a Food Business Licence to Polywell upon the surrender of the Food Business Licence by the current holder. However, the Council submits the question is whether the Tribunal has power to exercise its declaratory power and order that a new Food Business Licence issue to Polywell.
- The Council submits as follows:
- There is no power to make a declaration in s.24(1) of the QCAT Act. That section sets out the Tribunal’s options in relation to the review of the decision to cancel the licence. This section guides the decision made on the substantive issue. It does not create a power to make a declaration.
- The QCAT Act does make provisions for a “legally qualified member” to make declarations by way of s 60 of the QCAT Act.
- In relation to the making of a declaration, the Council relies on the observation in The Body Corporate for Rosegum Villas v Queensland Building and Construction Commission where the Tribunal stated: “[The] tribunal will generally be slow to make a declaration that is not directly required to enforce its determination in the matter. A clear requirement, and efficacy, of a declaration would need to be established before it would be made”.
- A declaration can only be made “about a matter in a proceeding” and in addition to or instead of “an order it could make about the matter”. The wording of the section makes it clear that the Tribunal can only make a declaration where it has jurisdiction to make an order.
- It is arguable whether a decision under s 24 is “an order” as this term is conspicuous in its absence from s 24 when compared with ss 72(1)(b)(i) and (3) which actually differentiates between a “decision” and an “order”, although the definition of “decision” in the QCAT Act suggests it could be an order.
- Without assessing the premises, the Tribunal does not have the necessary information to make a declaration that the premises are food safety compliant.
- Some of the declarations sought by Polywell are effectively encompassed in a decision not to cancel the Food Business Licence (should that occur). These are essentially the matters that the Tribunal would need to be satisfied in the review and there is no utility in such declarations. Conversely, if the decision is to uphold the cancellation of the Food Business Licence, there is no basis to make such declarations and any such declarations would be inconsistent with the ultimate decision.
- The last order sought is that Council issue a new Food Business Licence to Polywell. This is not an order that the Tribunal has the power to make. The “matter before the Tribunal” is a review of whether the Food Business Licence should be cancelled. The orders that the Tribunal is able to make relates only to the decision to cancel the Food Business Licence before the Tribunal. It does not relate to the issuing of a future Food Business Licence, which is not before the Tribunal.
- In reply, Polywell submits as follows:
- Section 24 of the QCAT Act provides that the Tribunal’s decision under this section is “subject to any contrary order of the tribunal”;
- An order under section 24 is an order of the Tribunal and this implies that the normal order under this section will take effect from when the reviewable decision takes or took effect, but a contrary order of the Tribunal can be made;
- In line with the objects of the QCAT Act, if the Tribunal determines in effect that Polywell was wrongly deprived of its licence, then it is only just that the company be given back a licence of which it was wrongly deprived;
- The Tribunal must act justly and fairly. If it is finally determined that Polywell has been wrongly deprived of its licence by the action of the Council, then it is only just that a food business licence be allowed to the company so that it can carry on business.
- There is no other way of dealing with this matter in a fair and just way as required the Act;
- Without the declarations sought, should the cancellation of the food business licence be overturned, and the declarations not made as requested by Polywell, the company will be required to apply again for a new food business licence to the Council. That would throw the company upon the mercy of the Council. Here Officer Story in evidence has stated that the Council would not grant in the future a food business licence to Polywell or its directors.
- It is appropriate at this point, to make a decision on the jurisdiction this Tribunal has to make the declaratory orders sought by Polywell. Although Polywell points to a potential injustice, depending on the outcome of this review, I am not satisfied that I have to power to make these declarations.
- The decisions I can make are set out under section 24 of the QCAT Act. I stand in the shoes of the original decision maker – here the Council – to make afresh the correct and preferable decision on the evidence before me. The decision was made under section 82 of the Food Act 2006 (Qld). That section allows the decision maker to suspend or cancel a licence. The original decision maker did not have a declaration power under section 82 of the Food Act and I am satisfied, as a matter of law, neither do I.
- However, dependent upon the outcome in this matter, section 24 of the QCAT Act does have other decisions available to this Tribunal which could be explored if necessary.
The Cancellation Process
- The Food Act 2006 sets out in Part 6 of Chapter 3 the process for cancellation of a Food Business Licence. Section 78 allows a licence to be cancelled if, inter alia, the licensee is not, or is no longer, a suitable person to hold a licence or the licensee has contravened a condition of the licence, other than a condition mentioned in section 69(1)(b).
Is Polywell a suitable person?
- The term “suitable person” was considered in Chief Executive, Department Tourism, Fair Trading and Wine Industry Development v 4 Play (Oz) P/L. In this decision, the Court of Appeal adopted the High Court’s observations in Australian Broadcasting Tribunal v Bond in relation to what the Court referred to as the similar expression of “fit and proper person”.
- In the Bond decision, the High Court considered the meaning of “fit and proper person” in the context of the cancellation of commercial broadcasting licences held by Mr Bond. In that matter Chief Justice said:
“A licensee which is a fit and proper person… must have an appreciation of those responsibilities and must discharge them. Conversely, a licensee which lacks a proper appreciation of those responsibilities or does not discharge them is not, or may be adjudged not to be, a fit and proper person”.
- Justices Toohey and Gaudron, in their joint judgment, state:
“The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question… The question whether a person is fit and proper is one of value judgment”.
- Justices Toohey and Gaudron further confirm that the past conduct of a person is relevant to the determination. Referring to Mr Bond’s previous conduct they say:
“In light of his past conduct and his character as assessed by the Tribunal, it had little confidence that Mr Bond would not again engage in conduct having the effect of compromising the integrity, as broadcasters, of licensee companies under his control... It was an evaluation made by reference to the conduct and character of Mr Bond”.
- In forming the belief as to whether a person is suitable to hold a licence, I may have regard to the criteria contained in section 57 of the Food Act 2006 as to suitability.
- Relevantly here they are
- whether the applicant has appropriate skills and knowledge to sell safe and suitable food under the licence;
- whether the applicant has obtained, or can obtain, the services of other persons with appropriate skills and knowledge to sell safe and suitable food under the licence;
- whether the corporation or an executive officer of the corporation has a conviction for a relevant offence, other than a spent conviction;
- whether the corporation, an executive officer of the corporation held a licence under this Act that was suspended or cancelled or has been refused a licence under this Act;
- Finally and broadly, anything else relevant to the applicant’s ability to handle or sell safe and suitable food.
Does Polywell have appropriate skills and knowledge to sell safe and suitable food or has obtained, or can obtain, the services of other persons with appropriate skills and knowledge?
- The Council submits that this business has required it to respond to customer complaints and continually requires monitoring and improvement to satisfy the Food Standard Code. The Council opines it is not its role to train restaurant staff or put work procedures into place to ensure food standards are met so that patrons are safe.
- The Council says despite many years of poor food safety standards, the Council conceded to the allocation of a provisional licence in May 2013 following the cancellation of a previous licence. A further Food Business Licence was issued in July 2013 on the expectation that food safety standards would be recognised as an essential and critical part of the food business undertaken by Polywell.
- The Council found further failings in the audit of July 2014. The Council can no longer allow what it sees as a significant risk to public health at these premises to continue. The Council says the decision to cancel this last licence is justifiable and sound as history supports the Council’s view that Polywell is not a suitable company to hold a licence.
- Polywell through its director, Ms Siu Yuk Ng says:
- Polywell is and always has been a fit and proper person to hold a food business licence;
- A relevant consideration are the reports of Polywell’s consultant dated 25 July 2014 (updated 31 July 2014) and 15 August 2014 and recently 21 May 2015;
- Any decision must take into account Polywell’s offer to the Council of the renewal of a Food Business Licence on 18 March 2013 which was accepted and resulted in an unconditional Food Business Licence being granted on 24 July 2013 following three separate food audits;
- Polywell made reasonable and practical attempts to comply with the Food Act 2006 before and after the fact.
- In particular, Polywell says:
- It engaged Jerome Cramer Consulting Services to conduct a food safety audit;
- Any identified matters were immediately attended to;
- Jerome Cramer Consulting Services was also engaged to conduct food safety staff training and audits on a monthly basis for one year to enable Ms Ng to stay up to date, for the premises to be independently audited, and to provide consultancy to food safety supervisor and management;
- Some minor non-compliances were overlooked in the July 2014 audit but were picked up in the August 2014 audit;
- the employee who placed food under the unsealed wooden bench was dismissed as he was on his final notice on his food handling procedures prior to that incident;
- Polywell had been doing as much as it could supervising the staff members to ensure they adhered to food handling procedures;
- All reasonable endeavours were used to educate staff and reprimand them when they made mistakes;
- The consultants prepared a food safety manual and a copy was provided to the Council. This manual was substantially complied with by Polywell and it employees. This was a voluntary initiative by Polywell to assist in compliance with the Food Act 2006;
- There have been no substantiated cases of food poisoning or illness by any customer;
- The health and safety of the public has not suffered as a result of any non-compliance identified by the Council;
- The restaurant has enjoyed a good reputation with the public over the years and was the sole livelihood of the company directors;
- Ms Ng has a Certificate IV in Small business Management from a TAFE College completed in 2014 and she continuously endeavours to improve her food safety skills.
- Mr Brad Bishop is a consultant who specialises in food safety, quality assurance and risk management in the food industry. He is an experienced food safety auditor, having audited many premises over 23 years and has an impressive history of auditing in 191 food businesses, nationally and internationally. There is no doubt of his expertise in food safety auditing. He gave substantial and technical evidence.
- Mr Bishop’s audit dated 21 May 2015 and comments thereon seeks to refute the observations of Council inspectors and makes the point that for many of the criticisms of the inspectors, the criticism is “not a food safety hazard and it is misleading to suggest otherwise”.
- Overall, Mr Bishop gave evidence that his food safety audit of 21 May 2015 was “satisfactory” and there were “no matters requiring attention in order for the premises to be certified” by Mr Bishop as “suitable for the carrying on of a food business”.
- Mr Bishop had seen the report of the Council officers. He explained at length the process undertaken to undertake a food audit and the Australian Food Standards he used to assess potential food hazards.
- Mr Bishop explained that under the current Food Standards (Standard 3.2.3) there is provision for existing premises prior to the release of the Food Standards and the Food Act 2006, that if they met the requirements of the old food legislation or regulations it would be unlikely that changes would have to be made. The premises would have been inspected by the Council when it was initially licensed as food premises and accepted the kitchen as it then was. The intent of the new standard is to set standards for new facilities.
- Mr Bishop’s criticism of the Council reports from both officers is that he does not believe that either officer undertook a food safety risk assessment. Mr Bishop referred to a decision tree in determine the Hazard Analysis Critical Control Points (HACCP) where the first step is to identify and list potential hazards. There is no risk to food unless there is some contact with food. A visual inspection is not enough unless there is some contact with food. Mr Bishop referred to the “cook and kill” process that would kill any bacteria and the sanitizing of floors as also reducing the risk.
- Mr Bishop’s overall criticism is that the Council officers did not take the circumstances in context and ask the question “what is the actual risk to food?” Mr Bishop said it is not possible to categorise a food hazard unless a risk assessment is undertaken in the context of the environment. Mr Bishop opined that this concept of a risk assessment was lost on the Council officers and that many of their complaints e.g. the menu, had nothing to do with food. They did not understand what they were there to assess.
- Mr Bishop said the first step is to look for a potential food hazard risk in the context of the food preparation. Then do an analysis of the risk to determine, in the actuality of this context, if is food hazard risk which includes the likelihood of it happening, severity if it does and the significance to the consumer in food outcomes. He said there was no analysis of risk.
- Mr Bishop opined the Council officers jumped from a potential risk to an actual risk without doing the analysis. If they had done an analysis, in his view, they would have found that many things that looked like a risk were in fact, not a risk. He says they took into account factors that led them into error and that the audits were based on many items that had nothing to do with food safety. For example, the menu items have nothing to do with food safety or photographs that themselves mean nothing, without an analysis of the risk. These matters on their own do not, in his view, constitute proof of a food hazard.
- Mr Bishop addressed the individual reports particularly pointing out where he says that an analysis of the risk would have revealed either a minor risk or no risk in food outcomes. For example, he was critical of the lack of swab testing of food surfaces to see if they were contaminated or just stained.
- Mr Bishop opined that the risks were being managed, for example, pest control every 2 months in an old building with other food premises on site. Management records were being kept appropriately showing evidence of the upholding of food safety standards ongoing, for example rubbish collection and the sanitizing of bins, a stock rotation schedule and a food safely manual that was created and in use.
- Overall with the changes made and his follow up audits of 7 September 2012 and 21 May 2015, Mr Bishop found in 2015 the management and maintenance of records to be substantially the same as 2012. In his long experience, Mr Bishop now deems Polywell to be a fit and proper person to conduct the business of a restaurant, the premises to be suitable and Ms Ng to be a fit and proper person to manage a restaurant in accordance with the food safety standards.
- Under cross-examination, it was put to Mr Bishop that the audits of the Council officers were compliance checks under section 39 of the Food Act and not risk hazard assessment and the reports did not require a hazard assessment under food standards 3.2.2 and 3.2.3 but compliance assessments against the Food Act and the standards.
- This difference was rejected by Mr Bishop. In his view, this made these documents deficient as there can be a breach of the standards which after analysis, does not create a food hazard risk.
- It was put to Mr Bishop that Clause 21 of the food standard 3.2.3 requires simply that the premises be maintained having regard to their use and it is a breach of Clause 21 if this is not the case, even if this does not present a food safety hazard. Mr Bishop agreed that if there was a significant defect, for example, the floor covering had peeled up, even if it didn’t present a food safety hazard, under clause 21, it would still be a breach of that standard because the requirement is to maintain the premises.
- It was further put to Mr Bishop that the Council reports were completed on the basis of breaches of the clauses of the food standards, NOT whether the breaches were food safety hazards. In Mr Bishop’s view, a food safety analysis must be completed and just assessing the issues as a minor or major breach against the Act was insufficient.
- It was put to Mr Bishop that hazard risk relates to practice and the code is ensuring that the hazards do not occur as well as preventing them once they do occur. Mr Bishop accepted this but he referred to the levels of assessed risk.
- Mr Bishop was referred to section 39 of the Food Act that creates an offence to not comply with a provision of the Food Standards Code. In particular, although not specifically nominated, standards 3.2.2 and 3.2.3. Mr Bishop stated he was not aware of Polywell, Ms Ng and her husband pleading guilty to charges under that section relating to 2012 offences, but only finalised recently.
- Even now knowing this, Mr Bishop still deems Polywell to be a fit and proper person to conduct the business of a restaurant, the premises to be suitable and Ms Ng to be a fit and proper person to manage a restaurant in accordance with the food safety standards. This is simply based on his two audits and recorded observations on 17 September 2012 and again in 2015. Mr Bishop had no contract between these two audits. He was not aware of any past history of the persons involved.
- Mr Liam Story is an Environmental Health Team Leader with the Brisbane City Council. In that role, he makes decisions as a delegate under the Food Safety Act based on the findings of audits undertaken by the Council Environmental Health Officers. He considered the audit reports of the Environmental Health Officers Paul Moloney and Lea Mitchell and on the basis of their reports, he decided to cancel the Food Business Licence of Polywell on 21 August 2014.
- In his evidence to the Tribunal, Mr Story explained the Council’s Eat Safe Scheme was developed to reward high achievers but also to allow Council resources to be directed towards poorer performing establishments. It is an incentive based scheme where the businesses get a star rating and that rating can be displayed to the public.
- Mr Story said the food safety audit report is essentially a scorecard setting out the mandatory requirements (part A) for all food businesses under the Food Standards Code and the Food Act and the officer uses that to note down and record both the positive and negative control matters business’ are undertaking. The numbered references (A1 to 44) are references to direct clauses of the Food Standards Code, Safety Standards and the Food Act.
- The first part is under the Act, then Food Standard 3.2.2 – the day to day requirements of a food business.
- There are different levels of compliance from non-compliance, minor, major and critical. Minor noncompliance is a low risk issue, something that can be easily rectified (minor cleaning, lack of paper towels). Major non-compliance is a more serious issue that cannot be rectified on the spot. Critical non-compliance are the most important compliance matters – pests, food processing, cross contamination issues.
- Part B of the audit report concerns good management practices. These are matters businesses can implement themselves. They are not mandatory but display good record keeping, for example temperature control and maintenance records.
- Mr Story’s decision not to re-issue a food licence to Polywell was based on his belief that Polywell was no longer a suitable person to hold a food licence. This belief was based on the regulatory history of the business, representations for Polywell and inspections by a Council officers.
- In Mr Story’s view Polywell has a demonstrable regulatory history from 1996-7 to be taken into account (Sections 57, 78 (1) of the Food Act).
- Mr Paul Moloney is an environmental health officer with the Council. He undertook a food safety audit at the restaurant on 8 July 2014. Mr Moloney said audits are assigned based on the previous year’s compliance history and that determines the frequency of the audits. Mr Moloney has attended the restaurant twice and audited it once.
- Mr Moloney said he was aware the restaurant had a past history of dealings with the Council and that the license had been cancelled previously. As part of his audit, Mr Moloney undertakes a history search himself. He says it is part of the auditor’s role to be aware of the history of the premises that is being inspected. However, he said he comes to each inspection with no pre-conceived view as it is a fresh audit. The reason the history check is undertaken is to see if “they are doing the same thing again” and this forms part of the role to discuss why these things are reoccurring.
- The audit is conducted by talking to the licensee, a visual inspection and by asking questions of the food handlers.
- Mr Moloney believes that even if he was not aware of any history of the restaurant, after the audit he would have formed the same view as Mr Story with respect to cancelling the licence. Apart from the 2014 prosecutions, Mr Moloney agreed that the only history of past non-compliance was the history held by the previous Council audit reports and star ratings, improvement notices and infringement notices. He accepted he takes these breaches as recorded in the Council data base as proven breaches.
- However Mr Moloney stressed his audits are “clean audits” and he judges it as he sees it at the time of the inspection.
- Mr Moloney recalls seeing documentation in relation to Part B of the audit proformer but was uncertain about reports he had seen. He believed he had seen the food manual and certain documentation after requesting it. The food manual is relevant in relation to section B of the audit proformer. It is not a mandatory document. It may assist in increasing the star rating. Having a food manual is a different issue to complying with the mandatory food safety requirements.
- Any identified non-compliances are always discussed with the licensee so that any mitigating circumstances can be identified. For example, if pests are detected, the inspector may ask to see the records of the pest control program.
- Mr Moloney was questioned about the breaches contained in his food safety report. He accepted that the pest inspections were bi-monthly. Mr Moloney agreed that when he inspected the property he deemed a risk to consumers in the restaurant. He was asked how he identified risk. Mr Moloney replied he used the Eat Safe audit proformer.
- The audit proformer essentially identifies all the food hazards under the Food Standards Code 3.2.2.
- Mr Moloney accepted that the building was an old building and that the large kitchen equipment could not be moved and at the time the kitchen was set up it, would have been approved under now old food safety legislation.
- Mr Moloney noted as a major non-compliance a large build-up of food waste under the immovable kitchen equipment. When asked then what he expected of Polywell in relation to this build-up, Mr Moloney replied he identified it as a design fault. He said he did not look into the history of the original approval but identified the build-up as a current hazard. He believed the reason for the hazard is that the equipment can’t be moved. It was judged on the current legislation.
- Mr Moloney recorded in his audit report that the restaurant’s floor surface and pipe work were unclean with an accumulation of food waste. In oral evidence, Mr Moloney said it would be reasonable to assume that waste under the cooking equipment was food however after examining his photographs, Mr Moloney could not identify specific food waste items. He agreed that, based on the position of the pipes, there was no contact with food or food preparation surfaces, however there was a risk in his view of attraction of pests.
- Turning to pest control, Mr Moloney referred to item A44 on the audit proformer. He identified control treatment every 2 months and at item B10 on the report he registered receipts in place to show the pest control.
- However, Mr Moloney does not accept that Polywell has done everything it could to control pests. In his view, treatment is one small part of pest control process. Other parts are the licensee ensuring the premises are clean so that, for example, gel traps are effective. Mr Moloney sees it as a holistic approach.
- Mr Moloney is not aware of a significant problem with respect to pests and rodents in the restaurant location. He did accept that pests can migrate from other parts of the building and that it is an older building.
- Ms Lea Mitchell is an environmental health officer with the Council. Ms Mitchell undertook a food safety audit at the restaurant on 14 August 2014. Ms Mitchell had viewed the show-cause notice issued to the restaurant prior to her inspection but denied she had any pre-conceived view prior to the inspection and had not viewed the restaurant’s compliance history that she could recall. Ms Mitchell did recall a food safety manual.
- Overall, I found the evidence of this witness unsatisfactory. Although she had completed the audit report at the time of her inspection, her memory was limited of the actual events of the day. Despite marking some aspects of her inspection as highly important or critical, she did not take photographs of her observations to provide independent evidence of her observations. I do not place great weight on her evidence.
Does Polywell or an executive officer of Polywell have a conviction for a relevant offence or held a licence that was suspended, cancelled or refused and, is there anything else relevant to the Polywell’s ability to handle or sell safe and suitable food?
- It is a matter of record and that on 18 February 2015, Polywell, Ms Ng and Mr Wong were convicted of offences against the Food Act. These offences occurred in 20 June and August 2012. The sentencing remarks of the learned Magistrate are provided to this tribunal.
- Polywell was fined $25,000.00. Ms Ng and Mr Wong were fined $5,000.00 each. No conviction was recorded.
- I am able to take into account these convictions of the offences listed above under the express criterion of s 57.
- However Polywell further submits that my decision must not take into account the history of dealings between the parties from 1996 to 2012.
- The Council submits the history of compliance prior to 2012 by Polywell is directly relevant as it is evidence that reveals its attitude towards, and history of compliance with, obligations under the Food Business Licence and allows a determination of whether the community can have confidence in future compliance.
- The Council further says the submissions on behalf of Polywell show a clear misunderstanding of, and misplaced reliance on, the rules of evidence which apply in a criminal/prosecution proceeding and there has been an ingenuous attempt to import these rules into the proceeding before this Tribunal and apply them to the matter.
- As a Tribunal, I am not bound by the rules of evidence and can inform myself in any way I consider appropriate, acting with as little formality and technicality as a proper consideration of the matter permits, although, I must observe the rules of natural justice. Neither the Food Act nor any other relevant legislation effects this position. I must ensure, so far as is practicable, that all relevant material is disclosed to enable me to decide the proceeding with all the relevant facts.
- I do not accept Polywell’s submission concerning the regulatory history prior to 2012. The final s 57 criterion is anything else relevant to Polywell’s ability to handle or sell safe and suitable food.
- I accept Council’s submission that Polywell’s history of compliance prior to 2012 is relevant to revealing Polywell’s attitude towards, and history of compliance with, obligations under the Food Business Licence and allows a determination of whether the community can have confidence in future compliance. I am satisfied that I am able to take this regulatory history into account under the least criterion of s 57.
- The regulatory history of Polywell stretches from 1997 and in that time, there have been a series of non-compliant inspections around cleanliness, hygiene and pests. Some of these matters are simply too old to have any weight attached to them but what is relevant to this determination is the number of times since 1997 that this company has come to the attention of the Council, either through complaints or audits.
- Looking at the history of this licensee, the overall impression is that of food business standards that are established at a particular point - by an inspection or audit - but that are repeatedly allowed to slip over time. Then the regulatory body feels obliged to step in and issue compliance notices or remove the Food Business Licence all together.
- In reality, on the evidence of Ms Ng and Mr Brad Bishop, since the cancellation of Polywell’s licence the same people – Ms Ng and her husband (the directors of Polywell) have been managing the restaurant on behalf of the current owner Winco Pty Ltd.
- I note that under the ownership of Winco but the management of the directors of Polywell, no evidence was before me of any further licence breaches. However I do not place great weight on this observation.
- Polywell has had its licence cancelled in 2012 but a provisional licence was issued in May 2013. I am satisfied it is relevant to the Polywell’s ability to handle or sell safe and suitable food that there has been a history of complaints to the Council and continuous downgrading under the Eat Safe Brisbane Scheme.
- Much of the evidence turned on the difference between compliance with the food standards and risk assessment analysis. The Council argued that section 39 of the Food Act required compliance assessment only. Mr Bishop opined the reports required food hazard risk analysis, which he said was missing from the reports.
- Mr Bishop impressed as a credible witness in relation to his expertise as a food safety auditor. He is clearly a knowledgeable expert who has long experience in his chosen field. His evidence was helpful in understanding a clearly technical area.
- However he and the Council differ considerably on the basis of the reports conducted by the Council officers. The Council submits that these are assessment against observed breaches of food standards 2.3.2 and 2.3.3 creating potential offences under s 39 of the Food Act.
- Mr Bishop contends that the reports are no more than failed food standard audits where the Council officers did not follow appropriate assessment of food safety risks. In Mr Bishop’s view, the food standards encourage businesses to implement a food safety system based on HACCP principles and all of the food standards are based on these principles.
Who is right?
- Polywell says the Food Act is intended to protect the public’s safety and both the Act and the Food Standards were introduced against the background of the HACCP principles and are specifically referred to in Food Standards. This means the Act and the Standards have to be read in the light of these principles. The Act and the Standards refer to the “likelihood” or “potential” a particular thing to cause food to be unsafe.
- Polywell further says likelihood or potential cannot be assessed unless a HACCP risk analysis is undertaken to determine, firstly, whether there is a food safety hazard in relation to the particular thing and secondly, the seriousness of any food safety hazard identified in relation to the particular thing.
- Polywell says this presupposes the use of the HACCP principles.
- Polywell also says the HACCP principles are embedded in the Food Standards Code. It gives as an example, Standard 3.2.1 dealing with Food Safety Programs. This standard does not apply but Polywell says it is instructive of the manner of the application of the Code. This Standard does refer to the HACCP principles but Polywell does admit it is not applicable here. However it says the application of the standard and the HACCP principles are substantially the same in effect.
- The Council submits the provision of a Food Business Licence and the enforcement of the standards required of a food business is prescribed by the provisions of the Food Act, which adopts the Food Standards Code.
- The Council submits the HACCP principles have an extremely limited application to the Food Act and they have absolutely no impact on the relevant provisions of the Food Standards Code. Firstly, the Council says, the HACCP principles are not referred to in any part of the Food Act and secondly, Food Standards Code refers to the HACCP only in Standard 3.2.1, this standard relates to “Food Safety Programs”.
- On that basis, the Council submits the evidence of Mr Bishop (entirely premised on the application of the HACCP principles) to the alleged breaches of the Food Act is irrelevant to the consideration of whether there has been breaches of the Food Act and his evidence generally is inherently unreliable as a result.
- The Council also says Polywell’s submissions refer to the definition of “unsafe food” in s 20 of the Food Act and the definition of a “food safety hazard” in schedule 3 dictionary of the Food Act.
- The Council submits these provisions are referred to in furtherance of Polywell’s submissions HACCP principles, and are not relevant. The Council submits the provisions referred to in s 20 and schedule 3 of the Food Act have no relevance to whether there are breaches of the Food Standards Code, as the definition of unsafe food in s 20 of the Food Act is for the purpose of the offences relating to the sale or handling of unsafe food. The definition of food safety hazard is only relevant to the provisions of the Food Act about food safety programs, which the Council says Polywell does not need to have.
- So, the Council submits, not only do the submissions on behalf of Polywell try to rely on the HACCP principles (which are expressly excluded from application to the Food Act), they also try to apply irrelevant provisions of the Food Act, whilst ignoring the relevant provisions, in support of their justification of the poor standards maintained by Polywell.
- The Council finally says there is no requirement for Polywell to have a food safety program. Even if there was, the HACCP principles are still irrelevant as the Food Act expressly excludes Standard 3.2.1 of the Food Standards Code in applying the Food Standards Code for the purposes of the Food Act and the Council says the HACCP principles are irrelevant to the consideration of this matter.
- In reply, Polywell submits the extent to which the HACCP principles are relevant in considering any alleged breach of the Food Act or of a food standard will only be relevant in the case of a prosecution in the Magistrates Court for any alleged breach. And therefore do not arise in these proceedings.
- I accept the submissions of the Council in relation to the HACCP principles as applied by Mr Bishop in his evidence. I do not accept the relevance of discussion on a Food Standard that is not applicable in any event.
- I am satisfied that, the provision of a Food Business Licence and the enforcement of the standards required of a food business is prescribed by the provisions of the Food Act, which adopts the Food Standards Code. In doing so, I am satisfied the HACCP principles have a very limited application to the Food Act and no impact on the relevant provisions of the Food Standards Code.
- Further affecting the weight to be given to Mr Bishop’s evidence, he based this opinion on his two audits and recorded observations on 17 September 2012 and again in 2015. Mr Bishop had no contract between these two audits. He was not aware of any past history of the persons involved.
- However, after being informed of Polywell, Ms Ng and her husband pleading guilty to charges, Mr Bishop still deemed Polywell to be a fit and proper person to conduct the business of a restaurant, the premises to be suitable and Ms Ng to be a fit and proper person to manage a restaurant in accordance with the food safety standards.
- Because of the his use of the HACCP principles in his inspection and the limited contact Mr Bishop had with Polywell and its directors, I do not place great weight on his evidence. While I do accept Mr Bishop is an acknowledged expert in this field, I am satisfied, in this matter, his evidence does not assist me greatly in the decision I must make in this review where it relates to the utilization of HACCP principles.
- This does not mean Mr Bishop’s evidence does not assist me overall in my assessment of Polywell’s suitability to hold a licence as a fit and proper person. As the High Court has explained, fit and proper person must have an appreciation of those responsibilities and must discharge them and a licensee which lacks a proper appreciation of those responsibilities or does not discharge them is not, or may be adjudged not to be, a fit and proper.
- Mr Bishop’s evidence is that in his view, Polywell was appropriately managing the risks. Pest control was occurring every 2 months in an old building with other food premises on site. Management records were being kept appropriately showing evidence of the upholding of food safety standards ongoing, for example rubbish collection and the sanitizing of bins, a stock rotation schedule and a food safely manual was created and in use.
- I accept that Mr Moloney came to his last audit with an open mind, although he had acquainted himself with the history of the restaurant.
- But his evidence was clearly based on his observations and assumptions. For example, while Mr Moloney said it would be reasonable to assume that waste under the cooking equipment was food, after examining his photographs, Mr Moloney could not identify specific food waste items. He also agreed based on the position of the pipes, there was no contact with food or food preparation surfaces, however there was a risk in his view of attraction of pests. There was no testing undertaken.
- Mr Moloney noted as a major non-compliance a large build-up of food waste under the immovable kitchen equipment as a design fault and a current hazard. He had not looked into the history of the original approval and assessed on the current legislation. Looked at objectively, this issue seems to be difficult for Polywell to fix when assessed by this Officer on today’s standards instead of when originally approved.
- Mr Moloney did not accept that Polywell has done everything it could to control pests but his evidence left me wondering what else Polywell could have done in an old building, where pests could migrate from other parts of the building.
- For the reasons I have outlined earlier, while accepting the evidence of Ms Mitchell, I do not place great weight on it.
- I find that by the time of Mr Bishop’s audit dated 21 May 2015, Polywell was appropriately managing the risks. I accept his evidence that there were no matters requiring attention in order for the premises to be certified by Mr Bishop as suitable for the carrying on of a food business.
- However, Mr Bishop’s evidence is at a point in time and I must look at these circumstances overall to decide if Polywell through its directors has a proper appreciation of its responsibilities and can discharge them.
- Based on the regulatory history of this company, the earlier cancellation of it licence in 2012, the Eat Street downgrades and the criminal convictions to the company and the directors, I cannot assume or be confident that this slippage of standards will not re-occur – as it has in the past.
- I have noted that I had no evidence before me that Winco has had recent complaints or had not pass any audits. The directors of Polywell have continuously managed the restaurant since the company lost its licence. Perhaps things have changes. That decision is for the future.
- Currently Polywell has no restaurant, although I am assured that Winco will transfer the business back to Polywell when asked. Again, that is a matter for the future.
- I am satisfied that Polywell is no longer suitable person to hold a Food Business Licence and the decision of the Brisbane City Council, Environmental Health/Compliance & Regulatory Services dated 26 September 2014 is confirmed.
- In respect of the future, having regard to my comments above as to the conduct of the directors of Polywell since the subject events, I make the following observations. Polywell has not has an opportunity to prove its self again as it has not owned a business since selling to Winco and the same directors have been managing for Winco, the same business which Polywell owned since 2014.
- In my view, it would be appropriate for the Council to take the conduct of the directors, since the subject events, into consideration of any new application by Polywell for a Food Business Licence, and take into account the most recent history of the management of the business for Winco by the directors of Polywell.
Food Act 2006 (Qld) s 241
 QCAT Act ss 20(1) &(2).
Kehl v Board of Professional Engineers of Queensland (2010) QCATA 58 at para 9.
 QCAT 588 at .
QCAT Act ss 60(1)(a) and (b).
Randall v Body Corporate for Runaway Cove Bayside  QCATA 10 at .
QCAT Act s 24(2)(b).
Ibid s 3(b).
Transcript Day 2 on 30/10/2015, page 26, paras 5-10.
Food Act 2006 (Qld) s 78(1)(a).
Food Act 2006 (Qld) s 78(1)(c).
 QCA 267.
(1990) CLR 321.
Ibid at 349.
Food Act 2006 (Qld) s 78(2).
Polywell Submissions Part 1 Paras 23 – 27.
Ibid Part 3 Paras 24 – 27, 32 – 36.
Ibid Part 1 Para 23.
Ibid Part 1 Para 24.
QCAT Act s 28(3); Cormack v Queensland Police Service – Weapons Licensing Unit  QCATA 115 at .
QCAT Act s 28(3)(e).
Food Act 2006 (Qld) s 20.
Ibid: sched 3.
Polywell Submissions Part 1 Paras 33 – 36.
Food Act 2006 (Qld) s 14(2)(b).
- Published Case Name:
Polywell Pty Ltd t/as Golden Palace Chinese Restaurant v Brisbane City Council, Environmental Health/Compliance & Regulatory Services
- Shortened Case Name:
Polywell Pty Ltd t/as Golden Palace Chinese Restaurant v Brisbane City Council, Environmental Health/Compliance & Regulatory Services
 QCAT 221
07 Jul 2016