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Reef House Property Pty Ltd & Ors v Commissioner for Liquor and Gaming Regulation[2021] QCAT 383

Reef House Property Pty Ltd & Ors v Commissioner for Liquor and Gaming Regulation[2021] QCAT 383

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Reef House Property Pty Ltd & Ors v Commissioner for Liquor and Gaming Regulation & Anor [2021] QCAT 383

PARTIES:

Reef house property pty ltd

reef house resort pty ltd

aapc properties limited t/as reef house m gallery

smaz family trust

ratcliffe architecture

kylie natasha ryan

storywater pty ltd t/as beach almond

gondwana resorts pty ltd

the reef house

(applicants)

v

commissioner for liquor and gaming regulation

mfb properties (nq) pty ltd

(respondents)

APPLICATION NO/S:

GAR081-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

6 October 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:

The application to stay a decision filed 3 August 2021 is refused.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Application to stay a decision – whether it is desirable to grant a stay

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22

Deputy Commissioner Stewart v Kennedy [2011] QCATA 254

The Music Kafe Pty Ltd v Chief Executive Liquor & Gaming Regulation [2021] QCAT 217

APPEARANCES &

REPRESENTATION:

Applicant:

WGC Lawyers for Reef House Resort Pty Ltd

Respondent:

S Mills, legal officer for Commissioner for Liquor and Gaming Regulation

CLS Licensing for MFB Properties (NQ) Pty Ltd

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    Reef House Resort Pty Ltd and its associated entities trading as ‘The Reef House’ seek a review of the Commissioner’s decision of 23 December 2020 approving MFB Properties (NQ) Pty Ltd’s application for a Commercial Hotel Licence for premises at Palm Cove currently known as the ‘Palm Cove Beach Sarayi Hotel’.[1]
  2. [2]
    Reef House now applies for a stay of the Commissioner’s decision.[2] In support of the application, Reef House contends that the grant of the licence was made despite widespread community objection, Reef House’s interests will be adversely affected if the stay is not granted and there is a strong expectation that its business model will simply not survive because it is located immediately adjacent to a premises enjoying a commercial hotel licence.[3] Further to that, Reef House argues that it operates a boutique upmarket accommodation venue based on relaxation, quiet and tranquillity. MFB is looking to establish a busy commercial hotel. Reef House also says, amongst other things, that there are genuine public safety issues which have not been adequately addressed or considered in the granting of the provisional licence by the Commissioner to MFB.[4]
  3. [3]
    The Commissioner opposes the granting of a stay and argues that the balance of convenience does not favour staying the decision.[5] Further to that, the Commissioner says there is no compelling evidence of immediate risk to the health and safety of the members of the Reef House, or to members of the public from operations at the site that requires intervention prior to the substantive application being heard and determined. In all of the circumstances, the Commissioner says a stay is undesirable and the application should be dismissed.[6]
  4. [4]
    In response to the application to stay, MFB says that the new commercial hotel licence would provide an opportunity to generate revenue from the food and beverage areas, previously operated by former tenants of MFB.[7] MFB argues that a stay will delay the recruitment process of staff and employment opportunities more generally. A stay will also be detrimental to MFB and the livelihood of its existing staff.[8]

Consideration

  1. [5]
    The Tribunal has the power to grant a stay of the decision under s 22 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) if it considers that it is desirable to do so, having regard to the interests of persons whose may be affected, the decision-maker’s submissions and the public interest.
  2. [6]
    In addition to the matters prescribed under s 22(4) of the QCAT Act, the Tribunal may also consider other relevant matters including whether there is an arguable case, the balance of convenience and whether a refusal would render a favourable decision on the review a nugatory.[9] The Tribunal is required to determine whether a stay is desirable within the meaning of s 22 of the QCAT Act.
  3. [7]
    I accept MFB’s submission supported by the evidence of Mark Biancotti, Company Director, that a stay, if granted, will indefinitely delay the recruitment process and employment opportunities for unemployed or underemployed members of the community and people in the broader hospitality and tourism industry.[10]
  4. [8]
    Mr Biancotti states that MFB, like most Hoteliers, has been greatly impacted by the COVID pandemic due to the lockdown and constant uncertainties with border closures. Mr Biancotti remains optimistic that once vaccination rates reach 70-80% across the population and with the onset of summer there will be better trading conditions.
  5. [9]
    In my view, that is not an unreasonable expectation. It is public knowledge that the Queensland Government is working towards easing COVID restrictions before the end of 2021, subject to an increase in vaccination rates across the State as a whole. I accept MFB’s submission that a stay will delay an opportunity for MFB to be able to take advantage of the time and money that it has invested in obtaining the commercial hotel licence when the trading environment improves.[11]
  6. [10]
    I also accept, as submitted by MFB, that a stay even for a short period of 6 months could have a dramatic effect on revenue because it could, and likely would traverse a period of improved trading in the hospitality industry and there would be a lost opportunity to trade with a commercial hotel licence and the revenue that goes with it.[12]
  7. [11]
    Reef House has failed to convince me that its business model will not survive and that without a stay there is no certainty or timeline as to when the operations of its adjoining neighbour (MFB) will fundamentally change.[13]
  8. [12]
    It is MFB’s responsibility to comply with any conditions imposed on its licence such as to ensure that entertainment and other activities do not impact on the neighbouring residents. The conditions imposed, amongst other things, reduce the available trading hours for the Rooftop Bar to 10:00pm and there exists a process available to members of the community including Reef House to make any complaints about trading operations. Indeed the Commissioner in responding to the stay refers to the complaints process available to members of the community and says that the process enables the regulator to take appropriate action if required, should any issues not be able to be resolved with MFB.[14]
  9. [13]
    I have also taken into account the delay in filing the application to stay a decision being on or about 1 June 2021 approximately 6 months after Reef House was advised of the Commissioner’s decision on 7 January 2021. Further to that, the application to stay a decision was filed 5 months after the filing of an application to review the decision.
  10. [14]
    I accept the unchallenged evidence of Jenney Wood, principal of the firm CLS Licensing and MFB’s representative in the review proceedings that MFB only received notice that an application to stay had been filed when it received an email from the respondent on 18 August 2021.[15]
  11. [15]
    I accept MFB’s submission supported by the unchallenged evidence of Mr Biancotti that the process to obtain a provisional licence took 17 months and it has invested time and money into obtaining the licence.
  12. [16]
    Reef House refers the Tribunal to the question of the public interest and argues that there are public safety issues to be considered here including, amongst other things, issues regarding noise, drunken and loutish behaviour, assaults, increased garbage and littering and traffic and car parking issues.[16] I have taken these matters into account and I am not persuaded that the public interest weighs in favour of granting a stay in all of the circumstances of this matter.
  13. [17]
    Although I accept that Reef House may have an arguable case, I am not required for the present application before me to determine the correct and preferable decision. Reef House will have an opportunity to present relevant evidence and to make submissions in respect of the reviewable decision at the final hearing of the application for review. Such submissions and evidence may address the issues raised in the support of the application to stay a decision such as whether MFB’s licence application received the support of the Cairns Regional Cairns.[17]
  14. [18]
    Reef House has failed to convince me that there is a public safety risk in circumstances where conditions on the licence are in place. Further to that, Reef House has failed to address how it is that a refusal of a stay will impact on its ability to trade in the usual way.
  15. [19]
    In determining whether it is desirable to grant a stay in this matter I have taken into account the potential human rights that may be impacted under the Human Rights Act 2019 (Qld). As discussed above, I am not persuaded that the public interest and any public safety issues identified by Reef House in support of the application to stay demonstrate an immediate need for the granting of the stay even if there are rights such as any property rights for the purposes of s 24 and privacy and reputation rights for the purposes of s 26 that may be impacted in this matter.
  16. [20]
    The balance of convenience in this matter does not favour staying the reviewable decision. I have considered the public interest and whether there is a risk to public safety. I have also taken into account the lost opportunity to trade and that revenue may be lost by MFB during a time when the hospitality industry may improve due to relaxed COVID restrictions within the State of Queensland. I have also considered that the provisional nature of the licence granted requires MFB to comply with any conditions imposed and there is in existence a complaints process available to members of the community.
  17. [21]
    Reef House has failed to convince me that it is desirable to grant a stay in all of the circumstances of this matter. The application to stay a decision filed 3 August 2021 is refused. I order accordingly.

Footnotes

[1] Application for review filed 3 February 2021.

[2] Application to stay a decision filed 3 June 2021.

[3] Stay application submissions of applicant filed 3 June 2021.

[4] Ibid.

[5] Submissions of the first respondent dated 9 September 2021.

[6] Ibid.

[7] Outline of submissions on behalf of the second respondent undated.

[8] Ibid.

[9] Deputy Commissioner Stewart v Kennedy [2011] QCATA 254 and see The Music Kafe Pty Ltd v Chief Executive Liquor & Gaming Regulation [2021] QCAT 217, [17].

[10] Affidavit of Mark Biancotti sworn 9 September 2021 and see the second respondent’s outline of submissions.

[11] Ibid.

[12] Ibid.

[13] Submissions of applicant filed 3 June 2021.

[14] Submissions of the first respondent dated 9 September 2021.

[15] Ibid and see affidavit of Jenny Wood sworn 1 September 2021.

[16] Submissions of applicant filed 3 June 2021.

[17] Supplementary submissions of the applicant for a stay undated.

Close

Editorial Notes

  • Published Case Name:

    Reef House Property Pty Ltd & Ors v Commissioner for Liquor and Gaming Regulation & Anor

  • Shortened Case Name:

    Reef House Property Pty Ltd & Ors v Commissioner for Liquor and Gaming Regulation

  • MNC:

    [2021] QCAT 383

  • Court:

    QCAT

  • Judge(s):

    Member Browne

  • Date:

    06 Oct 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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