Stuart v O’Connor as Acting Deputy Secretary of the Department of Justice and State of New South Wales [2016] NSWSC 1179

Stuart v O’Connor as Acting Deputy Secretary of the Department of Justice and State of New South Wales [2016] NSWSC 1179

Clauses 53Y(1)(d) and 53Z(1)(d) of the Liquor Regulation 2008 (NSW) are ultra vires because s 116I of the Liquor Act 2007 does not grant power to the Governor to subdelegate the specification of premises to the Secretary; such declarations can only be effected by regulation made by the Governor, and the Secretary's power in these clauses is legislative rather than administrative in nature and therefore invalid.

Parties
Plaintiff: Robert Arthur Preston Stuart; First Defendant: Feargus O'Connor as Acting Deputy Secretary of the Department of Justice; Second Defendant: State of New South Wales
Jurisdiction
Australia
Judgment Date
25 August 2016
Procedural Posture
Judicial Review / Final Judgment
Outcome
Declarations granted; sub-clauses invalid
Legal Topics
Ultra Vires, Delegated Legislation, Improper Subdelegation, Liquor Regulation, Statutory Construction
Administrative Law Ultra Vires Delegated Legislation Improper Subdelegation Liquor Regulation Statutory Construction

Case Brief

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Parties

Robert Arthur Preston Stuart

Plaintiff

Feargus O'Connor as Acting Deputy Secretary of the Department of Justice

First Defendant

State of New South Wales

Second Defendant

Procedural Posture

Judicial Review / Final Judgment

Legal Issues

  1. 1 Whether sub-clauses 53Y(1)(d) and 53Z(1)(d) of the Liquor Regulation 2008 (NSW) are valid or ultra vires
  2. 2 Whether the Secretary was empowered to declare premises subject to lockout laws under the Regulation
  3. 3 Whether the Secretary's decision was made for an improper purpose or was unreasonable

Ratio Decidendi

Clauses 53Y(1)(d) and 53Z(1)(d) of the Liquor Regulation 2008 (NSW) are ultra vires because s 116I of the Liquor Act 2007 does not grant power to the Governor to subdelegate the specification of premises to the Secretary; such declarations can only be effected by regulation made by the Governor, and the Secretary's power in these clauses is legislative rather than administrative in nature and therefore invalid.

Court Disposition

Declarations granted; sub-clauses invalid

Orders

  • Declare that sub-clauses 53Y(1)(d) and 53Z(1)(d) of the Liquor Regulation 2008 (NSW) are ultra vires.
  • Declare that the decision of the first defendant on 19 July 2016 to declare the 'Smoking Panda Bar' area of the Coronation Hotel as CBD subject premises for the purposes of clauses 53Y and 53Z of the Liquor Regulation 2008 (NSW) is invalid.