Danesi v Commissioner of Police [2003] NSWSC 868

Danesi v Commissioner of Police [2003] NSWSC 868

There were serious questions to be tried about whether the refusal to provide the evidence on which the section 104A order was obtained frustrated the plaintiff's appeal or review rights and about whether the Licensing Magistrate acted without jurisdiction; interim orders were therefore made to protect the integrity of that process. On the return date, because the Commissioner consented after being informed of the basis for the injunction, the plaintiff was released from the undertaking and final consent orders were made disposing of the proceedings.

Jurisdiction
Australia
Judgment Date
17 September 2003
Procedural Posture
Equity Proceeding Concerning an Order Under Section 104 a of the Liquor Act 1982 and Related Appeal or Prerogative Relief / Consent Orders After Ex Parte Interim Orders
Outcome
Consent orders made; summons dismissed with no order as to costs.
Legal Topics
['temporary Closure of Licensed Premises' 'natural Justice' 'prerogative Relief' 'appeal on Questions of Law' 'jurisdiction of Licensing Magistrate' 'stay of Order']
['liquor Law' 'administrative Law'] ['temporary Closure of Licensed Premises' 'natural Justice' 'prerogative Relief' 'appeal on Questions of Law' 'jurisdiction of Licensing Magistrate' 'stay of Order']

Case Brief

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Procedural Posture

Equity Proceeding Concerning an Order Under Section 104 a of the Liquor Act 1982 and Related Appeal or Prerogative Relief / Consent Orders After Ex Parte Interim Orders

Legal Issues

  1. 1 ['Whether refusal by police to provide the evidence on which a section 104A Liquor Act 1982 order was obtained created a serious question to be tried about breach of natural justice frustrating rights of appeal or review.' 'Whether there was a serious question to be tried that the Licensing Magistrate acted without jurisdiction in making the section 104A order.' 'Whether interim orders were appropriate to protect the integrity of the appeal or review process.' 'Whether the plaintiff should be released from the undertaking given to prosecute appeal or prerogative relief proceedings.']

Ratio Decidendi

There were serious questions to be tried about whether the refusal to provide the evidence on which the section 104A order was obtained frustrated the plaintiff's appeal or review rights and about whether the Licensing Magistrate acted without jurisdiction; interim orders were therefore made to protect the integrity of that process. On the return date, because the Commissioner consented after being informed of the basis for the injunction, the plaintiff was released from the undertaking and final consent orders were made disposing of the proceedings.

Court Disposition

Consent orders made; summons dismissed with no order as to costs.

Orders

  • ['Summons dismissed.' 'The Plaintiff is released from the undertaking given to the Court on 14 September 2003, in the terms set out earlier in the judgment.' 'The order made under section 104A of the Liquor Act 1982 on 14 September 2003 relating to ARQ Sydney is stayed permanently.' 'The order directed to the First...