Bien v Brisbane City Council (No 2) [2012] QCAT 611

CITATION: Bien and Anor v Brisbane City Council (No 2) [2012] QCAT 611 PARTIES: Thi Nhung Bien and Thieu The Nguyen trading as Mons Seafood (Applicant/Appellant) v Brisbane City Council (Respondent) APPLICATION NUMBER: GAR256-12 MATTER TYPE: General administrative review matters HEARING DATE: 24 September 2012 HEARD AT: Brisbane DECISION OF: Michelle Howard, Acting Senior Member DELIVERED ON: 24 September 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Until further order, the decision of the Brisbane City Council to cancel the Food Business Licence (A0031 4989) of Thi Nhung Bein and Thieu The Nguyen trading as Mons Seafood is stayed. CATCHWORDS: STAY APPLICATION – CANCELLATION OF FOOD BUSINESS LICENCE – where history of non-compliance much of which arose when business operated by persons other than the current operator – where current operator had demonstrated ability to achieve compliance and instigated major changes to address the historical concerns – whether public interest outweighs the adverse financial impact on the applicants of the cancellation order Queensland Civil and Administrative Tribunal Act 2009, s 22 Elliott v QBSA [201] QCAT 180 Music Kafe v OLGR [2012] QCAT 217 The Hideaway Café Bar Pty Ltd v OLGR [2012] QCAT 46 -- 1 of 5 -- 2 Harley v Department of Justice & Attorney- General [2012] QCAT 390 Maurita Italian Bakery and Patisserie v Gold Coast City Council [2010] QCAT 279 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] The operators of Mons Seafood, Thi Nhung Bien and Thieu The Nguyen, filed an application to review a decision of the Brisbane City Council to cancel their Food Business Licence No A0031 4989. They also filed an application for a stay of the decision pending hearing of the review application. [2] I heard the stay application on 24 September 2012, on the papers without an oral hearing. The review application was subsequently withdrawn and the stay order lifted, following the sale of the business. However, the Brisbane City Council has requested reasons for the stay decision. These are the reasons for the stay order made on 24 September, 2012. [3] The Food Business Licence has been held by Thi Nhung Bien and Thieu The Nguyen since June 2011, although Thi Nhung Bien had previously held a Food Business Licence at the premises with other persons from November 2009 to June 2011. [4] Early in 2010, a complaint was made of flying bugs and flies in the premises of Mons Seafood. Brisbane City Council officers undertook some four inspections during 2010. Audits were done, various non- compliances with the Food Act 2006 (the Act) or the Food Standards Code were identified and Improvement Notices issued. Similar outcomes resulted from an inspection in April 2011. [5] Then current holders of the licence became responsible for the business. Between August 2011 and March 2012, another 4 audits were held by Brisbane City Council officers. Again, non-compliances were identified and Improvement Notices issued. On one occasion an Infringement Notice was issued for $500 for failure to comply with a licence condition. [6] On 19 March 2012, a further inspection occurred. The business was found by the Brisbane City Council to have complied with the previously issued Improvement Notice. [7] Despite compliance, the inspector decided in view of previous non- compliance to issue a Show Cause Notice requiring the persons carrying out the business to show cause why the licence should not be cancelled. The summary of the historical concerns in the show cause notice includes a failure to display a current copy of the licence; failure to store food in a -- 2 of 5 -- 3 method that prevents possible contamination; failure to store potentially hazardous foods under correct temperature control and protect them from possible contamination; failure to ensure all food handlers wash their hands at appropriate times; failure to provide single use paper towels and soap at wash basins; failure to maintain premises, fixtures and fittings at an acceptable level of cleanliness or to an appropriate standard; and failure to take all practicable measures to eradicate and prevent pests on the food premises. [8] Another inspection was then carried out in early June 2012, when again the inspector found a contravention of the Food Standards Code and a recommendation was made for the cancellation of the licence. [9] The applicants put forward various reasons why the stay order should be made. Thieu The Nguyen has progressively been taking over management of the business since his involvement and assumed sole management of the business in March 2012. He completed several units at Southbank Institute of Technology in late 2011 regarding workplace hygiene and food safety practices and procedures. Mr Ngyuen asserts that the concerns which led to issuing the show cause notice in significant part arose as a result of the actions of previous operators of the business. [10] Although he acknowledges the subsequent finding of non-compliance in June 2012, he says has made various improvements since that time, including significant renovations at the premises. These include the removal and replacement of the entire kitchen, the remodelling of the office, and the purchase of an ice machine to ensure a constant supply of fresh ice. Photographs of the renovations were provided. [11] The invoices provided indicate that he spent over $12,000 on these renovations and that the intention to carry out the renovations existed in March, when some significant equipment appears to have been ordered. It is submitted that he did this in order to ensure that the business is run in a safe and hygienic manner and to meet concerns about storage of seafood. This would allow the concerns previously raised to be better addressed. [12] Thi Nhung Bien is no longer involved in the business and it was submitted would consent to being removed as a licencee. [13] As a result of the cancellation, the applicants say they are suffering financial hardship, in that income from the business has stopped, but they remain responsible for rent of some $5,000 per month. Also, they have 4 employees who are without income. [14] The Brisbane City Council submits that the stay should be refused. Essentially, it says that the repeated contraventions suggest that it can have no confidence that the applicants will maintain the required standards at the premises. Further, it contends that there is no evidence of significant changes to practices and procedures at the premises. -- 3 of 5 -- 4 Should a stay order be made? [15] Section 22(3) of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) provides that the Tribunal may make an order staying the operation of a reviewable decision pending hearing. It may only do so if it considers a stay order is desirable after having regard to the interests of any person whose interests may be affected; any submissions of the decision-maker; and the public interest: s 22(4). In exercising its discretion,1 the Tribunal must form a positive view that making a stay order is desirable. [16] The Tribunal may also consider other matters in addition to those specified in section 22(4), including whether there are real issues for determination; and whether the balance of convenience favours the granting of the stay.2 [17] It is not controversial that there are real issues for determination on the review hearing. Accordingly I accept that the applicants have an arguable case to present, but it is not my role on the stay application to determine the merits of the review. [18] I accept that the applicants are experiencing financial hardship as a result of the cancellation of the licence and closure of the business. The employees are also without their usual income. [19] The real issue is whether that financial hardship is outweighed by the public interest. [20] In my view, it is significant that much of the history of non-compliance arose before Mr Thieu The Nguyen’s involvement in the business, and certainly before he assumed sole responsibility for it. He has undertaken formal instruction and qualification in food safety since his involvement. The business did achieve compliance in March 2012 following an audit, under his management. He also had in train significant renovations to better address the previously raised and identified concerns when the Show Cause Notice issued. (Although not significant to the outcome of the stay application, I note that somewhat unusually in my view, it issued when the business was in fact compliant). [21] The later non-compliance in early June, occurred before the renovations had been completed. Hence, there has been a significant change in circumstances since the decision to cancel the food business licence was made, intended to address the concerns which had previously been raised. [22] The Act and related requirements embody preventative measures to ensure the health of members of the public. The importance of the requirements they contain and mechanisms for monitoring compliance 1 Elliott v QBSA [201] QCAT 180. 2 Music Kafe v OLGR [2012] QCAT 217; The Hideaway Café Bar Pty Ltd v OLGR [2012] QCAT 46; Harley v Department of Justice & Attorney-General [2012] QCAT 390. -- 4 of 5 -- 5 intended to ensure that businesses operate in a complaint manner cannot be overstated. It is in the public interest for food businesses to operate in compliance with food safety requirements, with a view to ensuring food sold is safe for consumption.3 [23] However, there is no suggestion, that the health of any member/s of the public has been adversely affected by the sale of seafood by and operations of Mons Seafood. I consider that this is also significant in relation to this stay application in circumstances where, although it is not for me to form definitive conclusions, that is a matter for the final hearing, it appears that very significant steps have been taken by a recently involved food business operator to address the concerns which have been raised by the Brisbane City Council. [24] On the basis of these matters, I conclude that the public interest does not require the decision to cancel the licence to be effective pending the hearing of the review application. In my view, in the circumstances I have explained, the interests of the applicants outweigh the public interest considerations. Therefore, the balance of convenience favours granting the stay order, and I consider it is desirable to do so. [25] I make orders accordingly. I am comforted by the fact that the Brisbane City Council will no doubt continue to monitor the operations of the business. In the event of issues arising pending hearing, the Council can of course seek orders for the revocation of the stay order. [26] I note Thi Nhung Bien’s consent to being removed as a licencee. However, I do not have power to make an order requiring her removal. The applicants could, of course, take steps to have her removed. For the reasons I have indicated, I am satisfied that the stay should be granted, whether or not she remains a licencee, given that Thieu The Nguyen is now the sole manager. 3 As discussed in Maurita Italian Bakery and Patisserie v Gold Coast City Council [2010] QCAT 279. -- 5 of 5 --