Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2024
  4. KC Fireworks Displays Australasia Pty Ltd v Resources Safety and Health Queensland - [2024] QCAT 76

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

KC Fireworks Displays Australasia Pty Ltd v Resources Safety and Health Queensland[2024] QCAT 76

KC Fireworks Displays Australasia Pty Ltd v Resources Safety and Health Queensland[2024] QCAT 76

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

KC Fireworks Displays Australasia Pty Ltd v Resources Safety and Health Queensland [2024] QCAT 76

PARTIES:

KC FIREWORKS DISPLAYS AUSTRALASIA PTY LTD

(applicant)

v

RESOURCES SAFETY AND HEALTH QUEENSLAND

(respondent)

APPLICATION NO/S:

GAR627-23

MATTER TYPE:

General administrative review matters

DELIVERED ON:

14 February 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Lumb

ORDERS:

  1. The Application to stay a decision filed on 7 September 2023 is dismissed.
  2. The costs of the Application to stay a decision filed on 7 September 2023 are reserved until the hearing of the Application to review a decision filed on 1 September 2023, or earlier order.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – General administrative review – Respondent made decision to suspend, for a period of six months, Applicant’s Fireworks contractor authority issued under the Explosives Act 1999 (Qld) – where Applicant has applied to review decision – where Applicant applies to stay decision under s 22 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether stay of decision should be ordered

Explosives Act 1999 (Qld), s 2A, s 22, s 111

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22, s 33

Deputy Commissioner Stewart v Kennedy [2011] QCATA 254

King v Queensland Law Society Incorporated [2012] QCAT 489

Legal Services Commissioner v Baker (No. 1) [2006] 2 Qd R 107

McCormick v Queensland Law Society Incorporated [2019] QCAT 380

Willmott v Carless [2021] QCATA 132

REPRESENTATION:

 

Applicant:

A Ace Solicitors

Respondent:

RSHQ Corporate, Resources Safety and Health Queensland

APPEARANCES:

 

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

Introduction

  1. [1]
    The decision the subject of this proceeding was made by the Respondent on 23 August 2023 (the GAR627 Decision). By the GAR627 Decision, the Respondent suspended, for a period of six months, the Queensland Fireworks contractor authority issued to the Applicant in this proceeding (KC Fireworks) under the Explosives Act 1999 (Qld) (the Explosives Act).
  2. [2]
    By a separate decision, which is the subject of general administrative review proceeding GAR691-23, the Respondent suspended, for a period of six months, the Queensland Fireworks operator authority held by Clive Featherby (Mr Featherby) under the Explosives Act (the GAR691 Decision). Mr Featherby is the sole director of KC Fireworks.
  3. [3]
    The same facts relied upon by the Respondent underpin both Decisions. The fireworks display that led to the Decisions took place at Pelican Waters, Queensland on 31 December 2022.
  4. [4]
    On 1 September 2023, KC Fireworks filed an Application to review the GAR627 Decision (the GAR627 Review Application).
  5. [5]
    On 7 September 2023, KC Fireworks filed an Application to stay a decision, being the GAR627 Decision (the GAR627 Stay Application).
  6. [6]
    On 6 October 2023, Mr Featherby filed an Application to review the GAR691 (the GAR691 Review Application).
  7. [7]
    Also on 6 October 2023, Mr Featherby filed an Application to stay a decision, being the GAR691 Decision (the GAR691 Stay Application).
  8. [8]
    The Respondent submits that, from the material available to it, the GAR691 Review Application and the GAR691 Stay Application appear to have been filed out of time and that the Respondent has not received any application to extend time for those applications.[1] The GAR691 Review Application states that the GAR691 Decision was received on 24 August 2023. Having regard to s 111(5) of the Explosives Act and s 33 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act), it appears clear that Mr Featherby did not file the GAR691 Review Application within the required 28 day period and that an extension of time is required. It further appears that no application for an extension has yet been filed. In these circumstances, I consider it appropriate to only deal with the GAR627 Stay Application.

The applicable statutory provision

  1. [9]
    Section 22 of the QCAT Act deals with the effect of an application to review a reviewable decision and provides the power to grant a stay of such a decision. Section 22 provides, relevantly for present purposes:
  1. The start of a proceeding for the review of a reviewable decision under this Act does not affect the operation of the decision or prevent the implementation of the decision.
  1. However, subsection (1) does not apply—
  1. if an enabling Act that is an Act provides otherwise; or
  1. to the extent the operation of all or part of the reviewable decision is stayed by an order of the tribunal under this section that is still in effect.
  1. The tribunal may, on application of a party or on its own initiative, make an order staying the operation of all or part of a reviewable decision if a proceeding for the review of the decision has started under this Act.
  1. The tribunal may make an order under subsection (3) only if it considers the order is desirable after having regard to the following—
  1. the interests of any person whose interests may be affected by the making of the order or the order not being made;
  1. any submission made to the tribunal by the decision-maker for the reviewable decision;
  1. the public interest.
  1. Subsection (4)(a) does not require the tribunal to give a person whose interests may be affected by the making of the order, or the order not being made, an opportunity to make submissions for the tribunal’s consideration if it is satisfied it is not practicable because of the urgency of the case or for another reason.
  1. In making an order under subsection (3), the tribunal—
  1. may require an undertaking, including an undertaking as to costs or damages, it considers appropriate; or
  1. may impose conditions on the order it considers appropriate; or
  1. may provide for the lifting of the order if stated circumstances occur.

…

The relevant principles

  1. [10]
    The Tribunal may make an order for a stay if it considers that the order is desirable having regard to the matters set out in subsections 22(4)(a), (b) and (c) of the QCAT Act. Other matters to be considered will include the Applicant’s prospects of success in the review proceeding, the effect of any stay on the proceeding, and whether irremediable harm might be suffered by the Applicant if a stay is not granted.[2]
  2. [11]
    As to the approach to be adopted by the Tribunal in a stay application, in Willmott v Carless,[3] Judicial Member DJ McGill SC said:[4]

… On an application for a stay, the applicant carries the onus, and to obtain a stay must show that, taking into account all relevant considerations, overall it is desirable that a stay be granted. That involves a positive finding in favour of a stay. Once one or more relevant factors which support the refusal of a stay have been identified, there must be one or more factors in favour of a stay which together outweigh the factors pointing the other way. Once it is recognised that a factor opposed to a stay deserves some weight, the factors favouring a stay must be deserving of more weight to produce satisfaction with the test, that the stay is desirable. “Cogent” simply means convincing or persuasive; in this context, sufficient to overcome the combined weight of the factors pointing the other way.

  1. [12]
    As to the question of prospects of success, the Respondent submits[5] that the Applicant must demonstrate to the Tribunal that it has a ‘good arguable case’, relying on the observations of the Hon James Thomas AM QC in Deputy Commissioner Stewart v Kennedy.[6] In my view, the Tribunal must be satisfied that an applicant to a stay application has an arguable case and that the qualifying word ‘good’ does not require any greater satisfaction than that there is an arguable case.
  2. [13]
    First, although the Hon James Thomas AM QC did reference a ‘good arguable case’ (at [14]), subsequent reference was made to the requirement of an ‘arguable case’ (at [15], [19]).
  3. [14]
    Second, in Willmott, Judicial Member DJ McGill SC said:[7]

Given the decision in Kennedy (supra), it would be wrong to say that an applicant for a stay does not need to show an arguable case on the review, but when considering the application of this requirement, it is important to bear in mind that the applicant has a right to a review by the Tribunal of the decision of the first respondent, and on that review the first respondent has the onus, and there is no presumption that the decision under review is correct … (underlining added)

  1. [15]
    I consider that if the Tribunal forms the view that an applicant for a stay has no arguable case, it follows that it would not be ‘desirable’ to grant a stay of the relevant decision. If the Tribunal concludes that there is an arguable case, then the Tribunal weighs the balance of the relevant considerations, and to the extent that the material permits the Tribunal to form a view about the strength of the case, that may be taken into account in determining whether it is desirable to grant the stay.

Is an order for a stay desirable?

The grounds for each of the Decisions

  1. [16]
    The Grounds set out for the GAR627 Decision stated:

On 31 December 2022 that you, as the Operator, conducted an activity, namely a fireworks display at 7 Quayline Close, Pelican Waters (“Quayline Close Display”) under the Authority, in circumstances where the level of safety that the activity was carried out under was inadequate for ensuring the safety of persons.

In conducting the Quayline Close Display, you as the Operator, failed to ensure that fireworks were used in accordance with section 174(2)(a) of the Regulation, in particular:

  1. The Quayline Close Display was not staged in accordance with the safety and security requirements for the display, including the following parts of the Queensland Code of Practice Control of Outdoor Fireworks Display of the Queensland Fireworks Code:
  1. parts 14.5.1 and 15.1.2 - as shown in the video evidence which was obtained by Inspector Symmans of the Quayline Close Display you allowed three (3) people not directly involved in the display to remain within the 40 metre minimum clearance distances calculated for the display (“Minimum Clearance Area”);
  1. part 16.6 - as shown in the video evidence which was obtained by our inspector of the Quayline Close Display, you failed to ensure that all persons within the Minimum Clearance Area of the Quayline Close Display wore Personal Protective Equipment during the display; and
  1. part 16.2.1.2 - as shown in the video evidence which was obtained by our inspector of the Quayline Close Display, you failed to stop the display and, in fact, lit additional fireworks while individuals not directly involved in the display stood within very close proximity of the fireworks (within few metres).

The above matters are serious non-compliances with the Operator’s obligations and could constitute offences under section 174(2) of the Regulation.

(footnote omitted)

  1. [17]
    I will now address the relevant considerations.

Arguable case?

  1. [18]
    The Applicant submits that it has ‘strong’ prospects of success and relies upon the following matters:[8]
    1. ‘The term of suspension is out of proportion to the offence.’
    2. ‘The decision maker did not differentiate between KC Fireworks Pty Ltd and Clive Featherby.’
    3. ‘The Decision maker did not consider the structure of KC Fireworks Australasia Pty ltd including the number of fireworks operators employed and the ability to remove Clive Featherby from the Safety management system.’
    4. ‘The offence, even if proven is unlikely to result in Mr Featherby or the Company not being a fit and proper person to hold a licence.’
    5. ‘In the companies case, there are other licenced operators who are fit and proper people to do the job (See Affidavit of Clive Featherby) and the company is set up to operate independent of Clive Featherby in some cases.’
    6. ‘There mines department have set a history and precedent of providing RAN notices to similar incidents. (See Affidavit of Robert Stevenson). There is nothing disclosed by the respondent that suggests Mr Featherby should be treated over and above the norm. In fact, the evidence appears to suggest the Mr Featherby (and KCs Fireworks Australasia Pty Ltd) has an exemplary record (see affidavit of Featherby and Stevenson) in the industry and this is likely to counter any concerns regarding suitability.’
    7. ‘The Decision Maker appeared to approach the issue of penalty as one of punishment against Mr Featherby for actions rather than asking the initial question as to whether or not Mr Featherby was a fit and proper person.’
  2. [19]
    The Respondent challenges each of those matters.[9]
  3. [20]
    With respect to the matters identified in subparagraphs 18(d) and (e) above, I accept the Respondent’s submission that, relevantly, the GAR627 Decision did not (and does not) turn on the question of the Respondent being satisfied that KC Fireworks is not ‘fit and proper’ to hold the authority. As the Respondent points out, the Decision was based on the existence of circumstances ‘where the level of safety that the activity was carried out under was inadequate for ensuring the safety of persons’. I find that those grounds of challenge do not raise an arguable case.
  4. [21]
    With respect to subparagraph 18(a) above, I am satisfied that, on the basis of subsequent evidence that has been provided by it, KC Fireworks has raised an arguable case that there may be a lack of proportionality between the breaches identified by the Respondent and the imposition of a six-month suspension. It is plain that, in imposing the suspension, the Respondent placed importance on the fact that it believed that two members of the public or ‘spectators’ were the persons in close proximity to the fireworks display in question.[10]
  5. [22]
    On 4 December 2023, the Applicant filed further submissions, as well as a statutory declaration from each of the persons who were in close proximity to Mr Featherby during the fireworks display. Each of those persons put their location at 10 metres or just over 10 metres respectively from Mr Featherby during the display. Relevantly in my view, each of those persons states that they were there to assist Mr Featherby, although neither person provided details of the specific assistance that they were providing on that night. In the case of Mr Pattinson, he states that he had been a fireworks assistant to Mr Featherby on many occasions, in Queensland, the Northern Territory and New South Wales, and that he had owned and legally operated fireworks shops in the Northern Territory.
  6. [23]
    In Supplementary Submissions on behalf of the Respondent dated 11 December 2023, the Respondent:
    1. points to inconsistencies between the evidence the subject of the statutory declarations and previous versions of events given by Mr Featherby;[11]
    2. contends that on an examination of the evidence it should be concluded that the two men were ‘evidently not assisting in the display and were members of the public’; that they were not wearing PPE; and that ‘their limited familiarity with fireworks does not materially change the circumstances which led to the suspensions’.[12]
  7. [24]
    It appears clear that the two men were not wearing PPE, other than earplugs. However, the material otherwise raises factual issues appropriately determined at the final hearing of the Review Application. Further, I consider that if the evidence given by statutory declaration were to be accepted, it would be material to, at the least, an assessment of the appropriate duration of the period of suspension and may arguably support a suspension for a lesser period. Consequently, I find that the Applicant has an arguable case.
  8. [25]
    I consider it unnecessary to reach a conclusion about the balance of the contentions but note that they also raise factual issues, and further submissions in this regard would be of assistance to the Tribunal at the Review Hearing.

The interests of affected persons/public interest

  1. [26]
    There appears to be no dispute that the suspension of the authority would have an impact on the business operations of KC Fireworks. In an affidavit affirmed on 21 September 2023, Mr Featherby stated that he had currently been able to fulfil his commitments by using competitive fireworks companies to do the work of his company but that he could not afford to do this for the entire ‘solution’ (possibly intended to be reference to ‘duration’), and that this was a very short-term week to week proposition (see paragraph 27). Mr Featherby also stated if he were not able to achieve a stay of execution ‘very soon’, he would need to take drastic action such as laying off workers or even winding up the company (see paragraph 28). This is further addressed below.
  2. [27]
    The Respondent submits that an inability to generate income because of the loss of an occupational licence will not ordinarily be considered a compelling reason for a stay given the significance of the public interest (relying upon the decision of Legal Services Commissioner v Baker (No. 1) [2006] 2 Qd R 107).[13] This submission intersects with the public interest consideration identified in s 22(4)(c) of the Explosives Act.
  3. [28]
    The express purpose of the Explosives Act is to regulate the handling of, and access to, explosives to protect public health and safety, property and the environment (s 2A(1)). In my view, the power of suspension (and cancellation) of authorities given to the Respondent under the Explosives Act plainly furthers the purpose of protecting public health and safety.
  4. [29]
    KC Fireworks points out the delay in issuing the suspension (almost eight months by my calculation) and submits that the Respondent ‘did not consider the offences serious enough to invoke immediate suspension’.[14] Although it may be inferred that the Respondent did not consider the incident in question to be of such serious importance to public health and safety as to warrant the immediate suspension of the authority, and the period of delay is relevant to the question of whether to grant a stay, I am still satisfied that the basis of the suspension raises a consideration of public health and safety and that this is material to the issue of whether or not a stay should be granted.

Effect of a stay order on the proceeding

  1. [30]
    In my view, there is no basis for a finding that the grant of a stay would adversely affect the review proceeding.

Irremediable harm if a stay is not granted?

  1. [31]
    As noted above, KC Fireworks has provided some evidence concerning the anticipated financial impact of the suspension. The material does not descend into detail and does not permit the Tribunal to make an assessment of the likely extent of the financial impact of the suspension, or of the likelihood that it may result in the cessation of the business carried on by KC Fireworks (and Mr Featherby).
  2. [32]
    As events have transpired (including an Application for miscellaneous matters filed by the Respondent on 6 October 2023[15] and subsequent directions of the Tribunal on 16 October 2023 and 20 November 2023), the suspension now has less than 10 days to run before it expires. In my view, there is no basis for concluding that KC Fireworks will suffer identifiable detriment, additional to any detriment that has been suffered to date, during the short period before expiration of the suspension. In the circumstances, I am unable to identify any real utility in granting a stay at this stage, even if a stay were otherwise warranted.

Conclusion

  1. [33]
    Having regard to all of the circumstances addressed above (particularly the public health and safety aspect and the lack of utility in granting a stay at this stage), I consider that it is not desirable to order a stay of the GAR627 Decision.

Orders

  1. [34]
    For the reasons set out above, the Application to stay a decision filed on 7 September 2023 is dismissed.
  2. [35]
    I also order that the costs of the Application to stay a decision filed on 7 September 2023 are reserved until the hearing of the Application to review a decision filed on 1 September 2023, or earlier order. I consider it appropriate that the costs of the Stay Application be determined having regard to any ultimate findings made upon the hearing of Review Application.

Footnotes

[1]  Respondent's Submissions in Response filed 20 October 2023, [17]-[19].

[2] King v Queensland Law Society Incorporated [2012] QCAT 489, [12] (Justice Alan Wilson, President); McCormick v Queensland Law Society Incorporated [2019] QCAT 380, [5] (Justice Daubney, President).

[3]  [2021] QCATA 132, [27].

[4]  At [27].

[5]  Respondent's Submissions in Response filed 20 October 2023, [11].

[6]  [2011] QCATA 254, [13]-[18].

[7]  At [14]. See also [6], [37].

[8]  Applicant's submissions filed 17 October 2023, [3].

[9]  Respondent’s Submissions in Response filed 20 October 2023, [38]-[53].

[10]  Respondent’s Submissions in Response filed 20 October 2023, [41].

[11]  See [13]-[14].

[12]  See [15]-[20].

[13]  Respondent’s Submissions in Response filed 20 October 2023, [64].

[14]  Applicant's submissions filed 17 October 2023, [4d].

[15]  Which raised the fact that the GAR 627 applications had not been served on it.

Close

Editorial Notes

  • Published Case Name:

    KC Fireworks Displays Australasia Pty Ltd v Resources Safety and Health Queensland

  • Shortened Case Name:

    KC Fireworks Displays Australasia Pty Ltd v Resources Safety and Health Queensland

  • MNC:

    [2024] QCAT 76

  • Court:

    QCAT

  • Judge(s):

    Member Lumb

  • Date:

    14 Feb 2024

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Deputy Commissioner Stewart v Kennedy [2011] QCATA 254
2 citations
Jump To
Cite 1 - [2011] QCATA 254
Cite 2 - [2011] QCATA 254
King v Queensland Law Society Incorporated [2012] QCAT 489
2 citations
Jump To
Cite 1 - [2012] QCAT 489
Cite 2 - [2012] QCAT 489
Legal Services Commissioner v Baker (No 1)[2006] 2 Qd R 107; [2005] QCA 482
2 citations
Jump To
Cite 1 - [2006] 2 Qd R 107
Cite 2 - [2006] 2 Qd R 107
McCormick v Queensland Law Society Incorporated [2019] QCAT 380
2 citations
Jump To
Cite 1 - [2019] QCAT 380
Cite 2 - [2019] QCAT 380
Willmott v Carless [2021] QCATA 132
2 citations
Jump To
Cite 1 - [2021] QCATA 132
Cite 2 - [2021] QCATA 132

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.