Body Corporate for the Sun Apartments Building v Commissioner for Liquor and Gaming Regulation

[2017] QCAT 417

CITATION:

Body Corporate for the Sun Apartments Building v Commissioner for Liquor and Gaming Regulation & Anor [2017] QCAT 417

PARTIES:

The Body Corporate for the Sun Apartments Building CTS 26372
(Applicant)

v

Commissioner for Liquor and Gaming Regulation (First Respondent)
and

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:

30 November 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

Under section 42 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), Belle Meade Pty Ltd be joined as a party to the proceeding.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – PARTIES – where an objection to grant of an adult entertainment permit – whether the permit holder should be joined

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 21, s 24, s 40, s 42

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

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”. 

2. The premises are located within the Sun Apartments Building.  The Body Corporate for the Sun Apartments Building (the Body Corporate) has applied to the Tribunal seeking to have the grant of the adult entertainment permit overturned.

3. Belle Meade has filed an application to be joined as a party to the proceeding.

4. The Tribunal has directed the Belle Meade, the Body Corporate and the Commissioner to provide written submissions in relation to the joinder application, and has directed that the application for joinder be determined on the papers.

Applicable Law

[5]Section 42 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) provides for the joinder of parties as follows:

42 Joining parties

(1)     The tribunal may make an order joining a person as a party to a proceeding if the tribunal considers that--

(a) the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or

(b) the person's interests may be affected by the proceeding; or

(c) for another reason, it is desirable that the person be joined as a party to the proceeding.

(2)     The tribunal may make an order under subsection (1) on the application of a person or on its own initiative.

1. Section 40 of the QCAT Act specifies that the parties to a review proceeding include a person joined under section 42.

Submissions of the Parties

1. Belle Meade has submitted that it should be bound by or have the benefit of the Tribunal’s decision, that its interests will be directly affected by the proceeding, and that it is desirable for it to be joined as a party to the proceeding.

2. The Commissioner consents to the joinder application by Belle Meade. The Commissioner submitted that the joinder of Belle Meade would lead to the Tribunal being better informed as to matters relevant to the proceedings.

3. The Body Corporate opposes the joinder application.  It submits that:

   a)while Belle Meade may or may not have a financial interest in the outcome of the review, any interest is external and irrelevant to the review of the Commissioner’s decision-making process; and

   b)Belle Meade is a commercial enterprise and is obliged to comply with a decision of the Commissioner, and therefore has no stake in the actual decision-making process as this is solely within the purview of the Commissioner.

Discussion and Decision

1. Under section 24 of the QCAT Act, the functions of the Tribunal for the review jurisdiction are to confirm or amend the decision; or set aside the decision and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the Tribunal considers appropriate.[1] The decision made by the Tribunal is taken to be the decision of the original decision-maker.[2]

   [1]QCAT Act, s 24(1).

   [2]QCAT Act, s 24(2).

2. One possible outcome of the review proceedings is that the Tribunal may decide to set aside the decision of the Commissioner to grant the adult entertainment permit to Belle Meade. Accordingly, I am satisfied under section 42(1)(b) of the QCAT Act that Belle Meade’s interests may be adversely affected by the outcome of this review proceeding. The submissions of the Body Corporate that Belle Meade’s interests are external and irrelevant to the decision-making process, or that Belle Meade has no stake in the decision-making process, are misconceived.

3. The purpose of the Tribunal in reviewing a reviewable decision is to produce the correct and preferable decision.[3]  I am satisfied that it is appropriate to exercise my discretion to join Belle Meade as a party to the proceeding to ensure that the Tribunal has all relevant material before it to enable it to make the correct and preferable decision.

   [3]QCAT Act, s 20(1).

4. Accordingly, I make orders for the joinder of Belle Meade as a party to the proceeding. It will be the second respondent.