PLAK v SUTHERLAND [1988] NSWCA 115

PLAK v SUTHERLAND [1988] NSWCA 115

By majority (Kirby P and Mahoney JA), the proceedings should be returned to the Full Bench to be dealt with in accordance with the current law as clarified in Metropolitan Licensing Inspector v Schultz, as the prior course below stemmed from following then-binding, but later reversed, authority. The discretionary remedy of mandamus is appropriate here in the public interest, and the correction of the prior legal error justifies remitting the matter even where both parties agreed there was no jurisdiction below. Each party should bear their own costs.

Parties
Appellant: Plak; First Respondent: Sutherland; Second Respondent: H K Roberts (State Crop Solicitor); Transferee of Licence: Mrs Hatziplis
Jurisdiction
Australia
Judgment Date
12 August 1988
Procedural Posture
Appeal / Judgment on Appeal From Supreme Court to NSW Court of Appeal
Outcome
Appeal allowed in part, order of mandamus issued
Legal Topics
Prerogative Writs—mandamus, Jurisdiction of Licensing Court, Discretion in Granting Mandamus, Effect of Licence Transfer on Appeals, Procedural Fairness
Administrative Law Liquor Licensing Law Judicial Review Prerogative Writs—mandamus Jurisdiction of Licensing Court Discretion in Granting Mandamus Effect of Licence Transfer on Appeals Procedural Fairness

Case Brief

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Parties

Plak

Appellant

Sutherland

First Respondent

H K Roberts (State Crop Solicitor)

Second Respondent

Mrs Hatziplis

Transferee of Licence

Procedural Posture

Appeal / Judgment on Appeal From Supreme Court to NSW Court of Appeal

Legal Issues

  1. 1 Whether the Full Bench of the Licensing Court retained jurisdiction to determine an appeal after licence transfer under s104 of the Liquor Act 1982
  2. 2 Whether mandamus should issue to the Full Bench to determine the appeal on the merits
  3. 3 Whether parties are bound by their positions taken below when the law is reformulated by appellate authority

Ratio Decidendi

By majority (Kirby P and Mahoney JA), the proceedings should be returned to the Full Bench to be dealt with in accordance with the current law as clarified in Metropolitan Licensing Inspector v Schultz, as the prior course below stemmed from following then-binding, but later reversed, authority. The discretionary remedy of mandamus is appropriate here in the public interest, and the correction of the prior legal error justifies remitting the matter even where both parties agreed there was no jurisdiction below. Each party should bear their own costs.

Court Disposition

Appeal allowed in part, order of mandamus issued

Orders

  • An order in the nature of mandamus issued to the Licensing Court of New South Wales to hear and determine the appeal according to law.
  • Proceedings returned to the Full Bench of the Licensing Court of New South Wales to be dealt with in accordance with the views expressed by the Court in Metropolitan Licensing Inspector v Schultz and in this case.