Bein and Anor v Brisbane City Council [2012] QCAT 409

CITATION: Bein and Anor v Brisbane City Council [2012] QCAT 409 PARTIES: Thi Nhung Bein 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: On the papers HEARD AT: Brisbane DECISION OF: Michelle Howard, Acting Senior Member DELIVERED ON: 9 August 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The stay application is dismissed. CATCHWORDS: STAY APPLICATION – PENDING INTERNAL REVIEW – where internal review decision issued before stay application decided Food Act 2006, ss 240, 241 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] In a decision dated 25 June 2012 (the original decision), the Brisbane City Council cancelled the Food Business Licence held by Thi Nhung Bein and Thieu The Nguyen who were trading as Mons Seafood. [2] The Food Act 2006 provides for a party to internally review an original decision to cancel a food licence1 and for a party who has sought an internal review to immediately apply to QCAT for a stay of the original 1 Food Act 2006, Chapter 9. -- 1 of 2 -- 2 decision to secure the effectiveness of the review and any later review.2 Under section 240 of the Food Act 2006, QCAT may stay an original decision for a period which must not extend past the time when the reviewer makes a review decision about the original decision and any later period allowed to enable an applicant to apply for a review of the review decision. If a person is dissatisfied with the review decision, they may in due course apply to QCAT for a review of the review decision.3 [3] On 18 July 2012, the applicants applied to QCAT for a stay of the original decision and an interim order under section 58 of the QCAT Act. [4] The Tribunal made directions on 19 July 2012 for the filing of written material and submissions by the parties. Both applications were then to be determined on the papers, without an oral hearing. [5] On 24 July 2012, a decision was made by the Tribunal refusing the application for an interim order. [6] The stay application has now come to me for consideration. The Council’s submissions state that the internal review of the original decision was completed in a decision of 30 July 2012 (the review decision). A copy of the review decision, which confirmed the original decision, was provided by the Council. [7] Also, on 8 August, 2012, the applicants filed an application in the Tribunal to review the review decision. [8] Under section 240(4) of the Food Act 2006, any stay made can not extend past the time the review decision was made by the Council and any time allowed to enable the applicant to apply for review of the review decision. In this case, the review decision was made on 30 July 2012 and the review application was filed in the Tribunal on 8 August 2012. [9] Accordingly, the application for a stay of the original decision pending completion of the internal review has effectively been overtaken by events. There is no longer any basis under the Food Act 2006 for a stay of the internal decision to be granted for any period. The application for the stay of the original decision under section 240 of the Act must fail. [10] I make orders dismissing it. [11] For the sake of completeness, I make the observation that it is now open to the applicants to apply for a stay of the review decision should they wish to do so. 2 Food Act 2006, s 240. 3 Food Act 2006, s 241. -- 2 of 2 --