Body Corporate for the Sun Apartments Building v Commissioner for Liquor and Gaming Regulation [2018] QCAT 77

CITATION: Body Corporate for the Sun Apartments Building & Ors v Commissioner for Liquor and Gaming Regulation & Anor [2018] QCAT 77 PARTIES: The Body Corporate for the Sun Apartments Building (First Applicant) Luke Giribon (Second Applicant) Marie Sheehy (Third Applicant) v Commissioner for Liquor and Gaming Regulation (First Respondent) Belle Meade Pty Ltd (Second Respondent) APPLICATION NUMBER: GAR273-17 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Cranwell DELIVERED ON: 9 February 2018 DELIVERED AT: Brisbane ORDERS MADE: 1. The Body Corporate for the Sun Apartments Building is removed as a party to the proceeding. 2. The time for service of the application for review on the Commissioner for Liquor and Gaming Regulation is extended until 24 October 2017. 3. The strike out application filed by Belle Meade Pty Ltd is otherwise dismissed. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PARTIES AND REPRESENTATION – PROPER OR NECESSARY PARTY AND STANDING – where party had not previously lodged an objection -- 1 of 6 -- 2 PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION OF TIME AND ABRIDGEMENT – where service occurred outside prescribed time PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – whether real question to be determined Liquor Act 1992 (Qld), s 30 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 47, s 48, s 61 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 19 Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Yeo v Brisbane Polo Club Inc [2013] QCAT 261 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] On 21 August 2017, a delegate of the Commissioner for Liquor and Gaming (the Commissioner) granted an adult entertainment permit to Belle Meade Pty Ltd (Belle Meade) for premises known as “OMFG’s Nightclub”. The premises are located within the Sun Apartments Building. [2] An application for review of the Commissioner’s decision, seeking to have the grant of the adult entertainment permit overturned, was filed with the Tribunal on 26 September 2017. [3] Belle Meade was subsequently joined as a party to the proceeding on 30 November 2017. [4] Belle Meade has applied for the application for review to be struck out under s 47 or s 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act). I will consider each of the grounds raised by Belle Meade in turn. Standing [5] Belle Meade seeks to challenge the standing of the applicants. In considering issues of standing, the first step is to identify the applicants. -- 2 of 6 -- 3 [6] Page 1 of the application form describes the applicants as “The Body Corporate for the Sun Apartments + others”. Page 6 of the application form is signed by Mr Luke Giribon, Ms Marie Sheehy and Mr Steve Habermann. The attachment to the application describes the applicants as follows: a) “The Body Corporate for the Sun Apartments Building (Mr Steve Habermann as Body Corporate Chair)”; b) “Mr Luke Giribon (Resident and Body Corporate Committee member)”; and c) “Ms Marie Sheehy (Resident and Body Corporate member)”. [7] In my view, the reference to “+ others” on page 1 of the application form indicates that there is more than one applicant. [8] It is trite to state the Body Corporate for the Sun Apartments Building has its own legal identity, separate from its officers and members.1 In my view, the application form and its attachment indicate that it is the body corporate, and not Mr Habermann, who is an applicant to the proceedings. The notation that Mr Habermann is the chair of the body corporate is not sufficient to identify him as an individual applicant, although it does explain his signature on the form on behalf of the body corporate. [9] Similarly, I am of the view that Mr Giribon and Ms Sheehy have been identified as individual applicants. The description of them as residents and body corporate members neither adds nor detracts from that position. [10] It is therefore tolerably clear to me that there are three applicants: a) The Body Corporate for the Sun Apartments Building; b) Mr Luke Giribon; and c) Ms Marie Sheehy. [11] The persons who can apply for review of the Commissioner’s decision are set out in s 30 of the Liquor Act 1992 (Qld) in the following terms: (1) A person may apply, as provided under the QCAT Act, to the tribunal for a review of a decision of the commissioner if— (a) the person— (i) made an application, submission or objection in the proceeding in which the decision was made; or (ii) if the decision is to take disciplinary action relating to, or the urgent suspension of, a licence, to cancel or suspend a permit or 1 See Land Title Act 1994 (Qld) and Body Corporate and Community Management Act 1997 (Qld). -- 3 of 6 -- 4 to impose or vary the conditions of a permit—is the licensee or permittee; and (b) the person is aggrieved by the decision. [12] It is not in dispute that the Body Corporate for the Sun Apartments Building did not on its own account make an application, submission or objection to the licensing application by Belle Meade. As noted above, the body corporate is a separate legal entity, and an objection by one or more of its members in an individual capacity does not amount to an objection by the body corporate. The Body Corporate for the Sun Apartments Building therefore is not a person who can apply for review of the Commissioner’s decision. [13] It is not in dispute that Mr Giribon lodged a written objection on 21 June 2017. In that objection, he identified himself as a co-owner of a residential lot at the Sun Apartments Building, and claimed that the grant of an adult entertainment permit would “cause annoyance, disturbance or inconvenience” to him. He therefore is a person who can apply for review of the Commissioner’s decision. [14] It is not in dispute that Ms Sheehy was a signatory to a petition objecting to the grant of the entertainment permit. She was identified in the petition as a “resident & owner”. She therefore is a person who can apply for review of the Commissioner’s decision. [15] Accordingly, I will order that the Body Corporate for the Sun Apartments Building be removed as a party to the proceeding. Service [16] The application for review was filed with the Tribunal on 26 September 2017. It was served on the Commissioner under cover of a letter and email dated 24 October 2017. [17] In the email from Mr Giribon to the Commissioner dated 24 October 2017, he stated: My apologies for not having served the Application to you as yet as we thought QCAT had already provided you with a copy. I have just read QCAT Rule 39 with regards to service and, pursuant to same, I attach by way a service a copy of the Application. I will also express post hard copy for your attention.2 [18] Belle Meade has submitted that r 19(2)(c) of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (QCAT Rules) required the application for review to have been served within 7 days. 2 Emphasis in original. -- 4 of 6 -- 5 [19] Under s 61 of QCAT Act, the Tribunal may extend a time limit fixed by the Rules. The Tribunal may do this on its own initiative, provided it does not cause prejudice or detriment to a party or potential party to the proceedings that is not able to be remedied by an appropriate order for costs or damages. [20] The relevant factors to be considered by the Tribunal in exercising its discretion to grant an extension of time were summarised in Crime and Misconduct Commission v Chapman & Anor:3 a) Whether a satisfactory explanation (or “good reason”) is shown to account for the delay. b) The strength of the case the applicant wishes to bring (assuming it is possible for some view on this to be formed on the preliminary material). c) Prejudice to adverse parties. d) Length of the delay, noting that a short delay is usually easier to excuse than a lengthy one. e) Overall, whether it is in the interests of justice to grant the extension. This usually calls for some analysis of the above factors considered in combination. [21] It is apparent that the delay in service resulted from a misunderstanding on the part of the applicants as to whether the Tribunal provided a copy of the application for review to the Commissioner, and a lack of knowledge of the QCAT Rules. Whether the applicants were legal practitioners is not to the point; they were acting in a private capacity. When the misunderstanding was pointed out to Mr Giribon, he acted promptly to serve the Commissioner. There is nothing to indicate that the delay was intentional, and the Commissioner has not taken issue with the delay. [22] In the attachment to the application for review, the applicants refer to a number of provisions of the Liquor Act which they say the Commissioner failed to consider or failed to give sufficient weight to. It is not for me in considering an extension of time to make any findings in relation to the issues for the determination in the substantive review. However, based on the material before me, I consider that the applicants’ grounds for review are not hopeless. [23] Belle Meade submitted that it “made reasonable and timely inquiries with QCAT” and “as a commercial imperative had to commence trade to pay rent in the relevant premises”. No evidence of the claimed inquiries with the Tribunal was provided, and no evidence was provided that Belle Meade would have delayed commencing trading if it had been aware of the 3 [2011] QCAT 229, 3 [9]. -- 5 of 6 -- 6 existence of application for review. Belle Meade also submitted that it stands to suffer “massive financial loss” if the application for review is successful. It seems to me that a financial loss, massive or otherwise, is inherently able to be remedied by an appropriate order for damages for the purposes of s 61(3) of the QCAT Act. [24] The length of the delay is comparatively short, at 21 days. [25] In these circumstances, I do not consider that it is in the interests of justice for the applicants to be deprived of their review rights. [26] On my own initiative, I extend the time for service of the application for review on the Commissioner until 24 October 2017. Merits [27] Belle Meade has submitted that the Commissioner has already made the correct and preferable decision, and that the element of offense is at the heart of the application for review. [28] The Tribunal4 has previously recognised the applicability of the principles enunciated in Dey v Victorian Railways Commissioners5 in exercising its power pursuant to s 47 of the QCAT Act: A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner ... But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.6 [29] As noted above, in the attachment to the application for review, the applicants refer to a number of provisions of the Liquor Act which they say the Commissioner failed to consider or failed to give sufficient weight to. These are matters which are properly amenable to merits review,7 and the appropriate course is for them to be argued before the Tribunal. [30] The strike out application is therefore otherwise dismissed. 4 See, eg, Yeo v Brisbane Polo Club Inc [2013] QCAT 261 at [11]. 5 (1949) 78 CLR 62. 6 Ibid, 91 (Dixon J). 7 See QCAT Act, s 20. -- 6 of 6 --