COMMISSIONER OF POLICE v RYAN [2007] NSWCA 196 | Case summary

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Annetts v McCann (1990) 170 CLR 596 Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 Baba v Parole Board (NSW) (1986) 5 NSWLR 338 Bennett & Co v Director of Public Prosecutions (WA) [2005] WASCA 141 Buck v Bavone (1975-76) 135 CLR 110 Coulton v Holcombe (1986) 162 CLR 1 Craig v South Australia (1994-95) 184 CLR 163 Danesi v Commissioner of Police [2003] NSWSC 868 Elcham v Commissioner of Police (2001) 53 NSWLR 7 George v Rockett (1990) 170 CLR 104 Kioa v West (1985) 159 CLR 550 Marine Hull and Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234 CASES CITED: May v Commissioner of Taxation (1999) 92 FCR 152 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 Ousley v The Queen (1997) 192 CLR 69 Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 Public Service Board (NSW) v Osmond (1985-86) 159 CLR 656 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 81 ALJR 515

9 August 2007 COMMISSIONER OF POLICE v RYAN Judgment 1 SPIGELMAN CJ: I agree with Basten JA. 2 SANTOW JA: I agree with Basten JA. 3 BASTEN JA: On 4 November 2005, Detective Inspector Clarke, who was stationed at Moree in northern New South Wales, obtained an order requiring Mr Benjamin Ryan, as licensee of the Royal Hotel, Heber Street, Moree, to close the premises from 5pm on that day until 5pm on 6 November 2005. The closure thus commenced on a Friday afternoon and concluded on Sunday afternoon. Procedural history 4 At approximately 9am on the morning of Saturday 5 November, the licensee made an urgent application in the Common Law Division, apparently for a "stay" of the closure order, which was granted by Rothman J. Although the closure order may be assumed to have expired at 5pm on 6 November 2005, the proceedings were pursued by the licensee, seeking a declaration that the order made on 4 November 2005 was "void and of no effect". On 27 October 2006, a declaration to that effect was made by Hall J. The present appeal is brought by the Commissioner, seeking to set aside the declaration and have the summons dismissed. In my view those orders should be made. 5 As will be seen shortly, s 104A(2) of the Liquor Act 1982 (NSW) required that a closure order could only be made on the application of the Director of Liquor and Gaming appointed under s 6A of the Liquor Act, or by the Commissioner of Police, appointed under s 24 of the Police Act 1990 (NSW). The application was in fact made by Detective Inspector Clarke, who was presumably the holder of a delegation pursuant to s 31 of the Police Act. Nothing turned on the identity of the applicant for present purposes. 6 As in force at the time the order was made, s 104A conferred power on an "authorised justice" to make a closure order. That term was given the same meaning as in the Search Warrants Act 1985 (NSW), since repealed: Liquor Act, s 4(1) authorised justice. The definition in the Search Warrants Act included "a justice of the peace who is a Clerk of a Local Court": s 3(b). (The current term "authorised officer", includes reference to "a registrar of a Local Court": see Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 3(1).) In the present case, the order was signed by Ms Narelle Carter, who was the Registrar of Moree Local Court in November 2005. Ms Carter was joined in the proceedings below and there appears at some stage to have been a question raised as to her authority, but that issue was abandoned: Tcpt, 28/11/05, p 6W. She was not a party to the appeal. 7 It has been assumed by the parties that the effect of the "stay", ordered on an interlocutory basis, was that the closure order, even if valid, did not operate for the balance of the period to which it applied, with the result that the licensee could open the premises without contravening s 104A(6) which made it an offence to fail to comply with the order. The possible difficulties in relation to the proper formulation of such an order were adverted to by Campbell J in Danesi v Commissioner of Police [2003] NSWSC 868 at [16]-[18]. Further, on the assumption that the order had no operation beyond the period to which it purported to apply, there is a further question as to the utility of the proceedings. In Danesi, Campbell J noted a submission that, even though the order would be spent before the hearing of the summons, "there was still a point in the appeal continuing, because whether or not a valid order under s 104A had been made was something which was relevant to the ongoing status of the licence": at [14]. No issue in relation to utility was raised on the appeal, although such a question would have been relevant at trial, in deciding whether to make the order sought. No submission was made to the primary judge that he should not make the declaration if the grounds relied upon by the plaintiff were made out: Ryan v Commissioner of Police & Anor [2006] NSWSC 1124 at [115]. No contrary submissions having been made in this Court, it may be sufficient to assume, as did Campbell J, that both parties have a sufficient interest in resolving a question as to the validity of the order. In circumstances where the facts are not hypothetical, and the question relates to the effect of the order, it may be accepted that the parties have a "real interest", sufficient to satisfy the test identified in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582 (Mason CJ, Dawson, Toohey and Gaudron JJ) and 596-597 (Brennan J). Statutory scheme 8 Section 104A of the Liquor Act, as in force at the date of the order, read as follows: " 104A Order by authorised justice for short-term closure of premises (1) An authorised justice may, by notice served on a licensee or a person apparently in charge of licensed premises, order the licensee to close the licensed premises from a time specified in the order until a later specified time. (2) An authorised justice may only make an order under this section: (a) on the application of the Director or the Commissioner of Police, and (b) if the authorised justice is satisfied that a serious breach of this Act has occurred, or is likely to occur, on the premises and that the closure of the premises is necessary to prevent or reduce a significant threat or risk to the public interest. (3) Without limiting the generality of subsection (2), circumstances in which there may be a significant threat or risk to the public interest include circumstances in which there is: (a) a threat to public health or safety, or (b) a risk of substantial damage to property, or (c) a significant threat to the environment, or (d) a risk of serious offences (having a maximum penalty of not less than 2 years imprisonment) being committed on the premises. (4) An order must not require the closure of premises for a period longer than 72 hours. (5) An order may require the closure of premises until specified conditions are met but must not require closure for a period longer than 72 hours. (6) A licensee must not fail to comply with an order made under this section. Maximum penalty: 50 penalty units or imprisonment for 6 months, or both. (7) Two or more orders closing the same premises may not be made under this section in any period of one week." 9 There are aspects of this provision, both procedural and in relation to its purpose and intended effect, which are not immediately apparent at a first reading. The provision was introduced by the Liquor and Registered Clubs Legislation Amendment (Enforcement) Act 1996 (NSW), Schedule 1 [70] ("the 1996 Enforcement Act"). According to the second reading speech of the Minister for Gaming and Racing, the purpose of the amendments was significantly to improve compliance with the Liquor Act and licence conditions and improve the effectiveness of controls over other unlawful activities carried out on licensed premises, including supply and use of drugs and prostitution: NSW Legislative Assembly Hansard, 18 June 1996, pp 3041-3043. No assistance in relation to the detail of the provisions is to be obtained from either the second reading speech or the explanatory note which accompanied the Bill in the Parliament. 10 Section 104A is to be found in Part 6 of the Liquor Act, which is entitled "Licensed premises". Sections 88-101 deal generally with the conditions of licensed premises and their use. In 1998, s 101A was introduced which empowered the Director to give a direction to a hotelier to take remedial action of a specified kind where the Director had reasonable cause to believe that there had been a failure to comply with a condition imposed on the licence by s 21AA. That provision imposed a requirement that the primary purpose of the business conducted in the hotel under the licence was to be "the sale of liquor by retail" and that any use of approved gaming devices on the premises did not unduly detract from the character of the premises or their enjoyment by persons ordinarily resorting to the premises for purposes other than gaming. Indeed, a licence could not be granted by the Licensing Court unless satisfied as to these matters: s 49A. These three provisions had a specific and obvious purpose. They were repealed in 2001. 11 Section 102, which is still in force, applied only to premises with a licence subject to a "dine-or-drink authority" and permitted either the Director or Commissioner of Police to give directions to the licensee as he or she thought appropriate in the public interest "for the purpose of minimising harm associated with misuse and abuse of liquor". 12 Section 103 provides as follows: " 103 Exclusion of persons from licensed premises (1) A licensee or his or her employee may refuse to admit to the licensed premises and may turn out, or cause to be turned out, of the licensed premises any person: (a) who is then intoxicated, violent, quarrelsome or disorderly, (b) who, for the purposes of prostitution, engages or uses any part of the licensed premises, (c) whose presence on the licensed premises renders the licensee liable to a penalty under this Act, or … (e) who uses, or has in his or her possession, while on the premises, any substance that the licensee or employee suspects of being a prohibited plant or a prohibited drug … ." 13 Section 104 provides that the Liquor Administration Board ("the Board") may "convene a conference" in relation to a verified written complaint about "undue disturbance of the quiet and good order of the neighbourhood". One of those entitled to complain is the Commissioner of Police. The Board member who presides over such a conference is empowered to "impose, vary or revoke conditions of the licence" or "issue a warning to the licensee": s 104(3)(a) and (c). The conditions which may be imposed on a licence include conditions relating to noise abatement, prohibition of the sale or supply of liquor before 10am and after 11pm, and restriction on activities which could encourage misuse or abuse of liquor: s 104(4). A decision of the member of the Board under s 104 may be the subject of an appeal as if it were an adjudication by a licensing magistrate: s 104(7). 14 Putting to one side ss 104A-104E, Part 6 ends with the following provision: " 105 Breach of the peace Where, upon application by any person, a licensee is directed by a Magistrate or licensing magistrate to close his or her licensed premises because, in the opinion of the magistrate, there is, or is likely to be, a breach of the peace in the neighbourhood of the licensed premises, the licensee shall close the premises from a time specified by the magistrate when giving the direction until a later time, whether on the same or a different day, so specified. Maximum penalty: 10 penalty units or imprisonment for 6 months or both." 15 Putting to one side s 104E, which was not introduced until 1999 and relates to "local liquor accords" it may be seen that ss 104A-104D were inserted into a Part of the Liquor Act dealing with the regulation of, and the prescription of offences in relation to, the use of licensed premises. The immediately surrounding provisions are concerned with the behaviour of persons on licensed premises and the risk to the peace and good order of the neighbourhood. To similar effect, a "local liquor accord" involves an arrangement entered into between two or more licensees, "for the purpose of eliminating or reducing alcohol-related violence or anti-social behaviour or other alcohol-related harm": Liquor Act s 4(1), local liquor accord. 16 Further, there appears to be no direct link between ss 104A-104D and the disciplinary provisions in relation to licensees and managers which are contained in Part 3, Division 8 (ss 66-69). Accordingly, they differ in their purpose, as revealed by the statutory context, from powers of immediate suspension provided in other contexts in aid of disciplinary procedures: see, eg, Medical Practice Act 1992 (NSW), ss 66-66B and Legal Profession Act 2004 (NSW), s 548, which appears in Part 4, Investigation of Complaints. 17 In addition to the terms of s 104A, some assistance as to the legislative purpose is to be obtained from the additional provisions in ss 104B-104D. Section 104B deals with urgent applications for an order under s 104A, which may be made by telephone. However, for an authorised justice to act on such a telephone application, he or she must be satisfied that the order is "required urgently and that it is not practicable for the application to be made in person": s 104B(2). It may be inferred from this provision that an application under s 104A(2)(a) should be made in person. Section 104B also provides for certain formalities which are omitted from s 104A. Thus the authorised justice who issues an order on a telephone application must complete and sign the order and "furnish the order to the applicant or inform the applicant of the terms of the order and of the date and time when it was signed": sub-s (4). Where possible it is to be furnished by facsimile: sub-s (7). If the applicant is not furnished with the order, he or she must complete the relevant form, including the name of the authorised justice and the date and time when the order was signed. It may be inferred in such circumstances that it is the applicant who is expected to serve the order on the licensee or person in charge of the licensed premises and that the form of order so completed and taken to be issued is the "notice" which is to be served under s 104A(1). It is also clear from s 104B that an application need not be made in writing where it is urgent. 18 The final part of the statutory context is the provision in s 104C for the Licensing Court to make an order closing licensed premises, being a power which may be exercised in circumstances which mirror sub-ss (2) and (3) of s 104A. There are, however, three significant differences between the two powers. 19 First, the power conferred on the Court may result in an order closing premises for up to six months, being the period prescribed by regulation: see s 104C(5) and Liquor Regulation 1996 (NSW), reg 86B. 20 The second clear variation from the procedure identified under s 104A is that, in relation to Court proceedings to close premises, an order may only be made if the licensee or manager of the premises is subject to an investigation under s 66A, (for the purpose of determining whether a complaint of a disciplinary breach should be made under s 67), or is the subject of a police investigation or if a complaint has in fact been made, presumably under s 67: s 104C(2)(a). That provision clearly links the exercise of power by the Licensing Court with the possibility of such action being taken. 21 Thirdly, the Court is required to give the licensee "notice of the application for closure" and "an opportunity to appear before the court and be heard in relation to the application": s 104C(2)(b). Finally, and no doubt related to the procedural fairness requirements, there is no limit on the number of orders a court may make under s 104C and further orders can in effect provide a continuing regime of closure: see s 104D. 22 The terms upon which an order may be made under either ss 104A or 104C provide a clear indication that closure of the premises must be "necessary" to prevent or reduce a significant threat or risk to the public interest, as defined. In Elcham v Commissioner of Police (2001) 53 NSWLR 7, O'Keefe J held that "necessary" was to be understood as engaging a power to make orders which are reasonably required in order to accomplish the specific protective purposes identified: at [47]-[60], adopting a meaning "by reference to concepts of reasonableness, commonsense and appropriateness to the accomplishment of the relevant statutory purpose" (at [56]), as explained in Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 452 (Gaudron, Gummow and Callinan JJ), as well as other authorities to similar effect. This approach was not challenged in the present appeal and should be accepted. 23 The relevant purpose is sufficiently described as protective of the public interest or as preventative of harm to the public interest. Effectuating the purpose requires a prediction as to the existence and extent of a relevant threat or risk to the public interest. That evaluation may be based on a satisfaction that a serious breach of the Liquor Act has occurred in the past, or that such a breach is likely to occur in the future, on the premises. The threats may involve, but are not limited to, threats to public health, safety or the environment. Relevant risks may include (but are not limited to) the risk of substantial damage to property, or of serious offences being committed on the premises. Procedural fairness 24 The explanation of the statutory context provided above is critical for an appreciation of the content of procedural fairness due to a licensee, prior to the making of an order under s104A. In particular, the Commissioner relied upon the fact that there was no express requirement that documents relied upon by the Commissioner in seeking an order be served on the licensee prior to the making of such an order. Further, and by way of comparison, there is express provision in the Act for a licensee to be given notice of the application and an opportunity to be heard in relation to it, where the application is made to the Court, pursuant to s 104C. Secondly, he relied upon the fact that such orders may be sought as a matter of urgency, in which case the giving of notice would be impracticable. Thirdly, as the primary judge noted, there is no provision for review of, or appeal against, an order made pursuant to s 104A: at [91]. 25 These matters are relevant to, but not determinative of, the content of the obligations of procedural fairness. 26 As the argument was presented in this case, there were two elements of unfairness relied upon as invalidating the order made by the authorised justice. The first was a failure to provide a copy of the material upon which the Commissioner sought to rely, prior to the making of the order. The second was a failure to provide the material with the order when it was served on the licensee. 27 Reliance on the failure to provide prior notice was, concededly, not raised before the primary judge. The Commissioner did not object to that further ground being raised, in principle, but did advert to the possibility that, if some form of prior notification were required, there had been no exploration on the evidence as to what degree of notice was given. For example, although the documentary material upon which the Commissioner relied before the authorised justice was concededly not supplied to the licensee, there were discussions between Inspector Clarke and the licensee, prior to the order being sought or made, which appear to have canvassed at least some of the matters of concern raised in the material put before the authorised justice. Raising such a complaint for the first time on appeal may, therefore, give rise to the difficulty identified in Coulton v Holcombe (1986) 162 CLR 1, to the extent that the issue was one which might have been met by evidence, if raised below. Nevertheless, the Commissioner did not object to the matter of principle being addressed. That course should be adopted. Lack of prior notice 28 The fact that the statute does not expressly provide for prior notification of an application to an affected party is of little weight. The principle that procedural fairness conditions the exercise of a statutory power, where the exercise of the power has the capacity to interfere with rights, interests or "legitimate expectations" of an individual, is now beyond debate: see Kioa v West (1985) 159 CLR 550. Furthermore, the expression of such an obligation in relation to one part of a statutory scheme is unlikely to give rise to a significant inference that its omission in another part of the scheme was deliberate in the sense that it indicated an intention that, in the latter case, the implied obligation to accord procedural fairness did not operate or was diminished: see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [126] and [139] (McHugh J) referring to Annetts v McCann (1990) 170 CLR 596 at 598 and Baba v Parole Board (NSW) (1986) 5 NSWLR 338 at 349. Finally, the fact that such applications may be made in circumstances of urgency may well impose a limitation on the obligation where such circumstances arise, but not generally, because "[w]hat these principles require to be done in the particular case will depend upon the exigencies of that case": Baba, at p 347F-G (Mahoney JA) and 349F-G (McHugh JA); see also Aronson, Dyer and Groves, Judicial Review of Administrative Action (3rd ed, 2004) p 436-438. 29 Similarly, there are cases where the nature of the power may be seen as "inconsistent with an obligation to accord an opportunity to be heard": see Marine Hull and Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234 at 241 (Wilcox J); National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 319 and 322-323 (Mason, Wilson and Dawson JJ). 30 In order to determine whether, in relation to the exercise of the power in question, procedural fairness required notification of the material on which the application was based, prior to the order being made, it is, as the Respondents noted, clear that "the statutory framework within which a decision-maker exercises statutory power is of critical importance": SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 81 ALJR 515 at [26]. In the present case, there are a number of features of the statutory scheme which would favour a degree of prior warning, before such an order is sought. First, an order to close licensed premises, even for 72 hours, is likely to cause some financial loss to the licensee. Secondly, the purpose is to prevent the commission of offences on the premises by third parties: there is no harm in warning the licensee of the proposed action, because one purpose may well be to persuade the licensee to take greater steps than are currently being taken to avoid conduct of the kind to which the order is directed. Thirdly, although the statutory scheme expressly envisages such orders being obtained in circumstances of urgency where no such prior notice could reasonably be expected, other cases will not be subject to such constraints and will therefore not be inconsistent with the giving of some form of prior notice. 31 The factors which militate against the giving of notice qualify but do not, in my view, override the considerations in its favour. Thus, the fact that an order is restricted to 72 hours operation, and that consecutive orders cannot be made demonstrate an intention to limit the harm caused to licensees. Further, the fact that some form of warning may be appropriate does not mean that the licensee must be given a copy of all the material intended to be supplied to the authorised justice, nor that he or she will have an opportunity to appear before the authorised justice. Rather, the structure of s 104A, when compared with that of s 104C, is sufficient to demonstrate an intention that the authorised justice is not required to hold a hearing. Accordingly, the purpose of prior warning or notice is not to permit the licensee to demand a hearing, or even delay the consideration of the application, or necessarily to allow it to provide material to the authorised justice. Rather, the purpose which prior notice would serve would be to allow the licensee an opportunity to persuade the Director or the Commissioner that adequate steps will be taken to avert the risk or that the risk is not of a kind which would fall within s 104A(2)(b). If a credible and material response were provided in a timely fashion, there might be an obligation on the Director or Commissioner to indicate that response with its application to the authorised justice. 32 Even an obligation formulated in these terms would be subject to the exigencies of the particular case. For example, there might be circumstances in which police operations might be compromised by disclosure of such information or there may be circumstances in which no purpose could be served in passing on information to the licensee, because its credibility would not be a matter for assessment by the licensee and there might be no reasonable steps the licensee could be expected to take in response to the information. However, it seems unlikely that those circumstances arose in the present case, because the matters relied on by the Commissioner constituted part of a history of complaints and misconduct, most of which were known to or could have been known to the licensee; the evidence indicated that a number of concerns were indeed explored with the licensee by Inspector Clarke. 33 However, to state the existence of an obligation of procedural fairness in such abstract terms does not permit of a conclusion that the obligation was breached in the present case. As already noted, there was evidence of discussions between Inspector Clarke and the licensee prior to the application for the order. Whether those discussions provided adequate notice of the proposed application, or the material upon which it was based, is a matter which was simply not explored in the evidence, because the complaint was not raised below. Absent an adequate factual basis, it would be impossible for this Court properly to determine the precise nature of the obligation in the particular circumstances, or whether it had been breached. Supplying information with order 34 The basis upon which the order was sought to be invalidated for want of procedural fairness, before the primary judge, was the failure to supply with the order a copy of the material upon which it was based. However, the reason for alleging that a failure to take that step would invalidate the order made by the authorised justice was not fully explained. As noted above, it seems unlikely that s 104A(1) envisaged that the authorised justice would serve the notice. If the notice were not properly served, it would not operate, but it would not thereby become "invalid" in the sense that it had not been lawfully made. Further, the effect of the order is to be obtained by service of the "notice" on the licensee: the phrase "by notice … order" is not apt to include the application and accompanying material. 35 In addition, s 104A does not require that the application to the authorised justice be in writing, let alone that the material upon which it is based be in writing. It is an assumption of the Respondent in the present proceedings that there is an obligation to produce such material in writing to support the application, for otherwise the obligation to provide the accompanying material would be ineffective. This would, at least to an extent, militate against the implication of a statutory duty to provide such material. 36 There is a well-known debate in administrative law cases concerning the possible obligation of an administrative decision-maker to provide reasons for his or her determination. The obligation to give reasons is expressly laid down by statute in many jurisdictions: see Aronson, op cit, p 555. Under Commonwealth law, the content of the obligation is generally prescribed in s 25D of the Acts Interpretation Act 1901 (Cth). However, in some cases the effect of a failure to give a written notice containing reasons is also identified and does not invalidate the decision: see s 501G(4) of the Migration Act 1958 (Cth) applied in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [10] and [31]-[37]. Absent invalidation, mandamus may lie to compel performance of the duty: Palme, at [41] (Gleeson CJ, Gummow and Heydon JJ). Further, as noted by McHugh J at [55]: "The prosecutor contends that the Minister's failure to give reasons constitutes jurisdictional error with the result that the Minister had no jurisdiction or power to cancel the visa. Jurisdiction is the authority to decide. It is not easy to accept the notion that a decision is made without authority because subsequently the decision-maker fails to give reasons for the decision. Nevertheless, it is always possible that a statutory scheme has made the giving of reasons a condition precedent to the validity of a decision." 37 The purpose for conditioning the validity of a decision upon the provision of reasons is sometimes expressed to be found in a principle that the affected party should have the opportunity to understand the basis of the decision so that he or she can decide whether to take appropriate steps to challenge its validity, if some basis for challenge is revealed. That is one rationale for the obligation to give reasons, amongst others, as noted by Kirby J in Palme at [105]. 38 Nevertheless, it has been clear since the decision in Public Service Board (NSW) v Osmond (1985-86) 159 CLR 656 that, absent the imposition of a statutory obligation, the general law principles of procedural fairness do not require administrative decision-makers to give reasons for the discretionary exercise of a statutory power. 39 The purpose of seeking a copy of the material on which the authorised justice based her order, is, presumably, to allow an inference to be drawn that the order was made for particular reasons or at least on a particular basis. Thus, where decision-makers are not obliged to give reasons, but adopt a recommendation made by a Departmental officer, the inference may be drawn that the reasons for a recommendation, as they appear in the Departmental brief, in truth provide the reason which motivated the decision-maker. However, to derive from that process an obligation to provide the material placed before the decision-maker, as a part of the statutory power to make a valid order, might have the appearance of doing indirectly what cannot be done directly, namely requiring the provision of reasons. Further, the material must, according to the contention, be supplied with the order, in order for the order to be effective. 40 If these contentions had substance, it would have been thought that similar arguments might have been raised and addressed, at least in analogous contexts. No authority dealing with administrative decision-making was identified in support of the contention. The case relied upon by the primary judge, in upholding the contention, was a decision of the Full Court of the Supreme Court of Western Australia, Bennett & Co v Director of Public Prosecutions (WA) [2005] WASCA 141 (Malcolm CJ, Wheeler and McLure JJ). However, it is doubtful whether that case provides a useful analogy. It was concerned with an application made ex parte to a Supreme Court judge seeking an order freezing identified property, pursuant to the Criminal Property Confiscation Act 2000 (WA) which, as the Court explained, was "designed to provide for the confiscation of property acquired as the result of criminal activity, or which has been used for criminal activity": at [30]. That Act required that where such an order was made, a copy was to be served on any person who had or claimed to be a person who had an interest in the property so as to enable the person to object to the confiscation of the property: s 46(6). Having been served with a copy of the order, solicitors for one such party sought a copy of an affidavit setting out matters upon which the order had been sought. As the Full Court noted at [43]: "It appears to us that the answer to the general question posed turns upon the question of whether Centurion [the interested person] was at any relevant time, a 'party' to a controversy in relation to which the affidavit was relevant evidence. The term 'party' we use in the broad, non-technical, sense of a person having an interest at stake in a proceeding which would enable the person to seek relief." 41 The Full Court upheld the entitlement of the "party" in those circumstances, as a general rule, to obtain a copy of such material. As the Court noted, where an ex parte order is made in the exercise of the Court's general jurisdiction, it would be expected that copies of the papers upon which the order was based would be served on the party affected: at [10]. That would be because an ex parte order would merely be a step in a proceeding seeking final orders. That practice, which is, in a broad sense, based upon the requirements of procedural fairness which inevitably attend a judicial proceeding, is unexceptionable. The next step is to apply that principle in the somewhat different circumstances of the present case. The primary judge sought to do that at [105] in the following manner: "In the present case, the existence of a duty to act fairly or a right according to the principles of natural justice to be able to adduce evidence and make submissions presupposes that there is open to a party affected by a s104A order the possibility of participating in proceedings that could result in an order setting it aside. In other words, it is difficult to see that there would be any right to be provided with a copy of the application and supporting material used to obtain the order if there was no avenue by which the party affected could challenge and participate in proceedings to attack the validity of an order made under s104A." 42 With respect, that reasoning elides the distinction between a step taken, on the basis of evidence, in the course of a judicial proceeding, and the possibility that a party affected by an administrative decision may have a right of challenge, by way of judicial review, to the legality of the decision. That elision can only be justified if, which was not argued in the present case, the decision of the authorised justice were to be understood as not merely a judicial decision, a proposition inconsistent with the passage from Gaudron J in Ousley v The Queen (1997) 192 CLR 69 set out at [48] below, but also a decision made in the course of other proceedings, in another court, which had not been commenced at the time the order was made. However, the differences are material and cannot be ignored. In my view, Bennett & Co provides no assistance to the Respondent. 43 This conclusion is consistent with the approach adopted by the Full Court of the Federal Court in May v Commissioner of Taxation (1999) 92 FCR 152 (Branson, Finn and Kenny JJ). Under s 264(1) of the Income Tax Assessment Act 1936 (Cth) the Commissioner was empowered to require a person, by notice in writing, to furnish information or attend and give evidence before the Commissioner. The Court noted that the powers conferred were inquisitorial and coercive but held that they did not engage a requirement to comply with the rules of procedural fairness before issuing and serving a notice: at [18]. Their Honours then noted a further submission at [31], expressed in the following terms: "The appellant in the present case is inviting us to extend natural justice's scope in a third direction so as to require a person affected by a decision to be given a warning that the decision has been made so that that person may take appropriate steps to protect his or her own interests by challenging the decision if grounds exist for so doing. It is not an invitation we accept." 44 Their Honours referred to the scholarly literature in relation to the requirements of procedural fairness and the advocacy of a duty to give reasons for decisions, which, they stated "have not found their way into Australian common law", referring to Osmond. At [33]-[35] their Honours continued: "For present purposes it is unnecessary for us to examine the various justifications advanced for procedural fairness to see whether one or other might conceivably be manipulated to justify the procedural right sought in the present appeal. … Notwithstanding that the appellant sought to make the decision as to the nature of the warning to be given a part of the decision-making process, the obligation to give such a warning could not properly be seen as an element in the decision to exercise the power. It would be a consequence - albeit on the appellant's submission a necessary consequence - of the making of the decision. Tellingly in this regard, the warning proposed by the appellant is not contained in the s 264(1) notice. Rather it takes the form of a request in the letter accompanying the notice that the recipient of the notice provide an appropriate warning. Equally, and unlike for example an obligation to give reasons for decision which, according to its advocates, has some reflex action back on the process of decision-making … an obligation simply to give notice of a decision has only a prospective purpose. That is to give an early opportunity to considering making, and/or to make, a challenge to the decision by whatever avenues are available for such a challenge. And we would re-emphasise that not even a duty to give reasons is yet accepted as being generally required as a matter of procedural fairness." 45 In my view there was no statutory obligation either express or implied as a matter of procedural fairness to supply the material on which the application for the order had been based. Had there been such an obligation, it is unlikely that it would have conditioned the validity of the order made by the authorised justice. The order would not have taken effect if notice of it were not served, but it would not have been invalid. In my view the challenge to the order on the basis of procedural fairness should have failed. Other grounds 46 The summons in support of the declaration sought below did not contain grounds. Nor were any grounds specified in the two affidavits filed on behalf of the Respondent. However, the outline of submissions for the plaintiff identified as a relevant ground that "the requirements of s 104A of the Act were not and could not have been met based on the material presented to the person making the order". The first limb of that ground, which appears to complain that the authorised justice was not in fact "satisfied" was apparently not pursued, because the primary judge reformulated the ground to the effect that "the material placed before the authorised justice was not such as could properly have satisfied her that the requirements of s 104A had been complied with": at [37]. No issue as to lack of satisfaction in fact was raised on the appeal. 47 Generally speaking, the principles to be applied in cases where the jurisdictional fact is a state of satisfaction or opinion are to be traced back to such authorities as R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407, where, at 430, Latham CJ stated: "Thus, where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist." As noted in more recent cases, such as Buck v Bavone (1975-76) 135 CLR 110 at 118 (Gibbs J), "the authority must act in good faith; it cannot act merely arbitrarily or capriciously". Similarly, misdirection as to law, failure to consider matters required to be considered or to ignore irrelevant matters will establish a basis for challenge, as will a decision which "appears so unreasonable that no reasonable authority could properly have arrived at it". See also Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274-276 (Brennan CJ, Toohey, McHugh and Gummow JJ) and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [133]-[138] (Gummow J). 48 In considering the appropriate test by which to assess the challenge to the satisfaction of the authorised justice, the primary judge had regard to various cases concerned with the issue of search warrants and warrants under the Listening Devices Act 1984 (NSW). Care must be taken, however, in applying principles discussed in a different statutory context. For example, in relation to a search warrant, the test is whether it "appears" to a justice that "there are reasonable grounds for suspecting" one of a number of specified matters: George v Rockett (1990) 170 CLR 104 at 107. Further, the grounds must appear in a "complaint made on oath". References in the judgment in that case to the question whether the complaint contained "sufficient information" to satisfy the magistrate (eg, p 114) must be read in this context. Reference to "sufficient" information or "the sufficiency of a sworn complaint" (p 115) should not be read as permitting the Court to engage in its own assessment of the material, to see if, objectively, the criteria for exercise of the discretion were established: cf [43] in the judgment of the primary judge. On the other hand, it seems doubtful that his Honour was diverted by acceptance of that language, as he also noted at [46] a passage in the judgment of Gaudron J in Ousley v The Queen (1997) 192 CLR 69 at 87 where her Honour stated: "Once it is accepted, as it must be, that even though issued by the Supreme Court, a warrant under s 4A(1) of the Act [ Listening Devices Act 1969 (Vic)] is not a judicial order but an instrument made in the discharge of an administrative function, it follows that its validity may be challenged in collateral proceedings, no matter the court in which those proceedings are heard. It is to be remembered, however, that inquiry as to the validity of a warrant is a limited inquiry. Validity depends upon the warrant having been regularly issued, not on the sufficiency of the material supporting the application for its issue." 49 In Elcham v Commissioner of Police (2001) 53 NSWLR 7, to which his Honour also referred, O'Keefe J noted the purpose underlying ss 104A and 104C, but continued at [35]: "However, an order made under s 104A is likely to have a detrimental effect, perhaps a seriously detrimental effect, upon the person operating the licensed premises and perhaps on the owner of such premises, if such owner is not the operator. As a consequence the approach to the application of the sections needs to take such considerations into account. As the sections impact on the rights of citizens to earn their livelihoods and use valuable premises ( Coco v The Queen (1994) 179 CLR 427 at 436-437) an approach to the establishing of the matters required by the sections which could enable the powers provided for in those sections, especially s 104A, to be used as an instrument of oppression, perhaps of corruption, in the hands of certain police is to be avoided." 50 The primary judge referred to this language saying that "it is necessary for an authorising justice to ensure that there is material capable of satisfying each of the jurisdictional preconditions": at [50]. However, reference to the possible consequences of abuse of the statutory power and a restatement in other language of the statutory preconditions, is unlikely to provide a more accurate basis for an assessment of the validity of an order than does reference to the statutory requirement. It is apt to confuse the issue to say that the justice should "ensure that there is material capable of satisfying" the preconditions: it is actual satisfaction which is required. No doubt it is also necessary for the justice to consider whether the application is made for an improper or extraneous purpose. If satisfied that it is, the order should not be made. However, the statutory criteria should usually be the focus of consideration and unsubstantiated fears that an order might be used, in the wrong hands, as an instrument of oppression, are unlikely to be relevant. 51 The primary judge also sought to set out "relevant principles" guiding a determination as to "whether the application enabled the authorising justice on the supporting material to be 'satisfied' in terms of s 104A(2)(b)": at [59]. With respect, this test misstates the correct approach. The question should have been asked whether there was any material before the authorised justice which was reasonably capable of supporting a state of satisfaction in respect of the relevant preconditions. The guiding principles do contain reference to the correct test, but they also indicate that there was "an onus" on the applicant to satisfy the authorised justice and that the "standard of proof in this respect is the civil standard". The source of those particular statements does not appear in the Liquor Act. Generally speaking, it is inappropriate to impose upon administrative decision-makers requirements derived from judicial proceedings. Analysis of factual material 52 There are numerous offences in relation to conduct on licensed premises, of which it is sufficient to note those set out in ss 125 and 125E. " 125 Conduct on licensed premises (1) A licensee shall not: (a) permit his or her licensed premises to be used for the purposes of prostitution, or (b) permit intoxication, or any indecent, violent or quarrelsome conduct, on his or her licensed premises. Maximum penalty: 20 penalty units in the case of an offence under paragraph (a) or 50 penalty units in the case of an offence under paragraph (b). (2) A person shall not use any part of licensed premises for the purposes of prostitution. Maximum penalty: 20 penalty units. (3) A person (whether or not he or she is the licensee) shall not, on licensed premises, sell or supply liquor to any person who is at the time in a state of intoxication. Maximum penalty: 50 penalty units. (4) Where a person is intoxicated on licensed premises, the licensee shall be deemed to have permitted intoxication on the licensed premises unless the licensee proves that the licensee and his or her employees took the steps set out in subsection (4A) or all other reasonable steps to prevent intoxication on the licensed premises. (4A) For the purposes of subsection (4), the following are the relevant steps: (a) asked the intoxicated person to leave the premises, (b) contacted, or attempted to contact, a police officer for assistance in removing the person from the premises, (c) refused to serve the person any alcohol after becoming aware that the person was intoxicated. … . 125E Sale of stolen goods and possession, use or sale of drugs not to be permitted on licensed premises (1) A licensee shall not permit his or her licensed premises to be used for the sale of: (a) any goods that the licensee suspects of being stolen, or (b) any substance that the licensee suspects of being a prohibited plant or a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985 . Maximum penalty: 50 penalty units. (1A) A licensee must not permit the possession or use on the licensed premises of any substance that the licensee suspects of being a prohibited plant or a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985 . Maximum penalty: 50 penalty units. (2) A servant of a licensee or a person, other than the licensee, in charge of licensed premises shall not permit the licensed premises to be used for the sale of: (a) any goods that the servant or person suspects of being stolen, or (b) any substance that the servant or person suspects of being a prohibited plant or a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985 . Maximum penalty: 50 penalty units. (2A) A servant of a licensee or a person, other than the licensee, in charge of licensed premises must not permit the possession or use on the licensed premises of any substance that the servant or person suspects of being a prohibited plant or a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985 . Maximum penalty: 50 penalty units. (3) It is a defence to a prosecution for an offence under this section if it is proved that the goods concerned were not stolen or that the substance concerned was not a prohibited plant or a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985 ." 53 The material placed before the authorised justice included an affidavit by Inspector Clarke stating that he had reasonable grounds for believing the criteria specified in s 104A to be satisfied, which he supported with a closely typed statement of circumstances on which he relied, extending over more than two pages. These in turn were a summary of police intelligence information reports and included a litany of allegations of thefts, fights and other misconduct by intoxicated persons on or about the premises. 54 The application was contained in a written form (not apparently prescribed) which included a section in the following terms: "I swear … that: 1. I have reasonable grounds for believing that there is, or within 72 hours there will be, on or in the premises, *a serious breach of the Liquor Act, 1982 has occurred [sic], or is likely to occur on the premises and that the closure of the premises is necessary to prevent or reduce a significant threat or risk to the public interest; 2. The reasonable grounds I rely upon are: (a) *a threat to public safety, or (b) *a risk of substantial damage to property, or … (d) *a risk of serious offences (having a maximum penalty of not less than 2 years imprisonment) being committed on the premises … ." 55 The declaration was sworn by Detective Inspector Clarke before a justice of the peace, who appears to have been the authorised justice who signed the order. The circumstances relied upon were a summary of incidents which occurred between 31 August 2005 and 2 November 2005 "either within, out the front of or nearby to" the Royal Hotel. It may be inferred that this material was physically placed before the authorised justice, together with a bundle of "information report summaries" prepared by the New South Wales Police Service. All told, the material covered 40 pages. 56 It is sufficient for present purposes, to note a selection of incidents referred to by Inspector Clarke, occurring in October 2005. "1/10/05 2.30am. Police received several calls in relation to persons brawling at the Hotel. Upon attendance approximately 100 persons were seen in the middle of the street milling about …. 6/10/05 11.00pm. A male person has been punched to the side of the face whilst walking across the bar room, and was knocked to the floor injuring his ankle. Just prior to this incident Police were called to the Hotel in relation to a brawl. 8/10/05 12.30am. Police attended the Hotel in relation to a brawl. … 8/10/05 1.00am. Police attended the Royal Hotel in relation to a brawl, at the time there were approximately 100 persons on the street obstructing traffic and pedestrians. 8/10/05 12.00am. A large crowd of intoxicated persons left the Hotel to watch a fight on Heber Street … . 22/10/05 1.00am. A crowd of about 50-60 patrons have left the hotel loitering in Balo Street, Heber Street and Albert Street, the patrons were moderately intoxicated and were smashing beer bottles on the roadway. … 24/10/05 5.30pm. Police received information that a drink was spiked in the Hotel, further analysis revealed that the drink was actually spiked with a strong sedative. … 26/10/05 10.00pm. A capped syringe was located in the gaming room of the Hotel. Also during a walkthrough Police inspected a female toilet and located vomit that had partially dried on the floor, rendering the toilet unserviceable with females using the male toilet. 28/10/05 10.00pm. Police received information a male person was selling prohibited drugs in the Hotel. Police searched the Hotel locating a male fitting the description, and when searched located white capsules in a resealable bag in his pocket. 28/10/05 10.30pm. A female had her mobile phone stolen from the table she was seated at within the Hotel. 29/10/05 11.15pm. Police were called the Royal Hotel in relation to a brawl. … 29/10/05 11.10pm. Police attended the Hotel in relation to a brawl, at the time patrons were observed in the rear car park to be drinking and urinating in the bushes. A female was observed within the hotel … walking along a corridor bouncing from wall to wall, these issues were brought to the attention of the manager. 1/11/05 9.40pm. Two males have become involved in an altercation in the Hotel, one of the males has been removed from the Hotel by security. On the way out of the Hotel this male has smashed a window. 1/11/05 9.45pm. Police were called to the Hotel in relation to a brawl. At the time there were approximately 15 persons outside the Hotel on the footpath. A female was being attempted to be taken from the scene by friends although was creating a disturbance. … . 1/11/05 10.10pm-10.20pm. A window was smashed at Freemans Jewellers, when the owner has arrived at his premises 30-40 persons were loitering in the area near the Hotel. 1/11/05 8.35pm. Information has been supplied to Police that a number of needles (syringes) were located in the female toilet on this day, and the premises had been visited by known illicit drug users. 1/11/05 8.40pm. A known drug user was asked to leave the Hotel, and informing Police that needles were in the female toilet. 1/11/05 8.40pm. When Police were conducting a walkthrough of the Hotel a known drug user was observed within the Hotel, and suspect for dealing drugs in the Hotel." 57 Although the incidents referred to appear to have occurred on various days of the week, mainly during the month of October, there was only one Friday and no Saturdays on which no incidents were recorded. It seems clear beyond doubt that there were a significant number of intoxicated persons, some of whom had engaged in violent or quarrelsome conduct, on the premises at various times, in contravention of s 125(1)(b). The maximum penalty for any such offence is 50 penalty units: see also 125(3). Apart from offences which involve the unauthorised sale of liquor or sale of liquor without a licence, both of which include imprisonment for 6 months as an alternative or addition to a penalty of 50 penalty units, and with the exception of offences (not directly involving conduct on licensed premises) relating to false or misleading statements in documents delivered to the Board, a court or other relevant officer, pursuant to s 139, which carries a maximum of 50 penalty units or imprisonment for 12 months, or both, the maximum penalty available under s 125(1)(b) is the highest in the Liquor Act. It would be reasonably open to an authorised justice to conclude that there were repeated breaches of s 125(1)(b) and that, if it were not sufficient that the offence itself was a serious one under the Act, the fact that there were on several occasions groups of apparently intoxicated persons was capable of supporting the opinion that the breaches in question were, for that reason if no other, "serious". 58 The repetition of the conduct left open the likelihood of recurrence. The fact that the conduct was of a kind which must have been known to the licensee or his responsible agents, suggested that closure was reasonably necessary in a practical sense to prevent a risk of repetition. Repetition of such drunken and violent behaviour would have involved a threat to public health or safety within the terms of sub-s (3)(a). There is no reason why a reasonable authorised justice could not have been satisfied of these matters. 59 The primary judge expressed the view that material relating to drug use on the premises was not reasonably capable of satisfying the test that a breach of s 125E, involving the permitting of premises for possession, use or sale of prohibited drugs was established. He referred to the incidents relating to possible drug usage, some of which were probably not capable of supporting a satisfaction that offences had occurred. However, some of the information did leave such a satisfaction reasonably open. In relation to the incident which occurred on 28 October 2005 at 10pm, his Honour stated that a man was approached by police at the hotel, at [69] (fifth dot point): "He was searched and a small resealable bag was located on him containing two white capsules. Although the report refers to the bag containing the capsules as entered as a drug exhibit, there is no information indicating the nature of the substance within the capsules. There is no information suggesting that the person was carrying on any activity associated with drugs on the hotel premises." 60 It is true that the contents of the capsules were not identified in the report, but it was open to the authorised justice to infer that the capsules were prohibited drugs. The person on whom the capsules were found was identified by a female patron who had spoken to the manager of the premises and told him that "a person was selling drugs within the establishment". This incident may have involved the police attending at the request of the manager, although that is unclear. However, there was information identifying the person in question as having sold drugs on the premises. 61 Putting the drug matters to one side, his Honour then dealt with the incidents of violence and brawling. He concluded at [71]: "It would not be unreasonable to conclude that behaviour or incidents of this kind may well be associated with excessive consumption of alcohol. The same applies to incidents involving property damage. However, accepting that the material is capable of giving rise to such a conclusion, it is another matter entirely as to whether it satisfies the preconditions set out in s104A, in particular, as capable of satisfying an authorised justice that closure of premises is necessary to prevent or reduce a significant threat or risk to the public interest." 62 After identifying at [73] the numerous incidents involving violent altercations and damage to property, his Honour concluded at [74], after dismissing the suspected drug activity: "The other material concerning incidents involving assaults, brawls, arguments and the like, were not sufficient of themselves to satisfy the preconditions." 63 Despite reminding himself of the correct test, there is a significant slide in language from the question whether the material "was not capable of satisfying" the preconditions to a conclusion that it was not "sufficient" to satisfy the preconditions. 64 His Honour noted the fact that prosecutions could have been lodged under the Liquor Act for the "discrete and particular incidents" which constituted breaches of s 125, at [75], and continued: "I do not, however, as I have already stated, consider that together such events satisfy the preconditions for the making of an order under s 104A of the Act." 65 Again, there has been a slide into language suggesting that the primary judge was making an assessment of the facts for his own satisfaction. Otherwise, the reason why the preconditions were not satisfied appeared to depend upon there being "discrete or particular incidents". Although relating to drug activity, in the next paragraph he said that such incidents, where established, "could form the basis for a conclusion that there was widespread possession, use and sale of prohibited drugs at licensed premises and that such a situation extended over a significant period". He continued: "The material placed before the authorised justice, in this respect, however, fell within a relatively short period and, in my opinion, did not reveal that it occurred in circumstances and with a frequency that it could be said that a 'blind eye' was being turned to such alleged activity or that the licensee permitted such to occur." 66 The inadequacy of the material relating to drug activity may be accepted, particularly in relation to the possible involvement of the licensee. However, it appears that his Honour may have been formulating a broader test whereby an order under s 104A was only permissible if the unlawful conduct was widespread and continuing over a significant period. 67 This test, if it were applied, would depart from the language of the Liquor Act. Section 104A(2) is not conditioned upon there having been more than one breach of the Act, or indeed any breach of the Act. It is sufficient that a serious breach of the Act "is likely to occur". If that breach would itself involve a significant threat or risk to the public interest, it would be open to the authorised justice to accept the necessity of a closure order to prevent or reduce the threat. Further, it is sufficient that the threat is a threat to "public health or safety or a risk of substantial damage to property", which might be satisfied by patrons being assaulted, or property, either inside or outside the premises being damaged in a substantial manner. So far as an assessment of what might be "necessary" was concerned, the authorised justice would have been entitled to take into account the repetition of disorderly behaviour over a two month period, from which she might have inferred an absence of willingness or ability on the part of the licensee to control the behaviour and, despite frequent attendance, the inability of the police to prevent such conduct occurring. 68 The preconditions to the making of an order were formulated in terms of the satisfaction of the authorised justice which, although not unreviewable, involved the formulation of a view based upon an evaluative judgment of the circumstances as they appeared from the material before her which, in the absence of reasons demonstrating failure to apply correct legal principles, cannot readily be challenged. Further, the making of the order was the exercise of a discretionary power which would have required demonstration by the Respondent of error of the kind referred to in Craig v South Australia (1994-95) 184 CLR 163 at 179, to attract the power of this Court to intervene. Again the difficulty of drawing such an inference in the absence of reasons is obvious unless the actual making of the order carries with it the clear inference of error because it is "capable of explanation only on the ground of" a misconception of law: see Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 (Dixon J). 69 In my view, there was ample material upon which the authorised justice could have been satisfied as to, (1) the fact that a serious breach of the Liquor Act had occurred in the past and, (2) although only one limb needed to be satisfied, was likely to occur in the future; (3) the circumstances which had occurred in the past were likely to be repeated, with a threat to public health or safety and (4) (although only one limb need be satisfied) with a risk of substantial damage to property; and (5) on the basis of the history of failure to prevent repetition of such events, that it was necessary to close the premises to prevent the risk occurring over the period of the closure. Those conclusions preclude a court intervening to declare the order made by the authorised justice invalid because beyond power. Accordingly, the orders made by the primary judge should be set aside and, in lieu thereof, the summons should be dismissed with costs. The Respondents should pay the costs of the appeal. Other matters 70 There are five other matters which should be noted. The first is an observation by the primary judge that "it will normally be in the interests of those seeking an order under s 104A to serve with the order a copy of the application and a copy of the supporting materials": at [116]. Where judicial advice is given, which has no bearing on the outcome of a case, no appeal can be brought in relation to it. All that can properly be said is that there may be two views as to whether advice should be given and whether, if advice is to be given, it would be to that effect. 71 Secondly, as exemplified by the analysis of the statutory context set out above at [9]-[23], there may be a question as to the purpose of an order under s 104A, arising from the fact that an order can operate only for a limited period of time and that the making of an order appears to have no direct on-going consequences in relation to what may be a continuing risk. Whether such a consideration is something that an authorised justice could take into account need not be addressed: there is no evidence as to what particular considerations she did take into account in making the order sought, beyond what may be inferred from the factual material placed before her. 72 Thirdly, from the perspective of the Respondent, the case may be seen as an example of an attempt to obtain some material upon which to challenge a decision where it is not open to the affected person to seek reasons from the decision-maker. In some cases those difficulties may be ameliorated by seeking a direction in accordance with Practice Note SC CL 3, Supreme Court Common Law Division - Administrative Law List, paragraph 23 of which states: "Where proceedings have been taken to challenge the decision of a public body or public official, because of the difficulties which at times arise in ascertaining the decision making process and the reasons for the decision, the Court may, at a directions hearing, direct the body or person whose decision has been challenged to furnish to the plaintiff within a specified time, a statement in writing setting out the reasons for the decision including findings on material questions of fact referring to the evidence or other material on which those findings were based, the body's or person's understanding of the applicable law and the reasoning processes leading to the decision … ." 73 The last point gives rise to the fourth matter to be noted, namely that the authorised justice, by the time the matter reached this Court, was no longer a party to the proceedings. It may have been thought that her presence was not necessary because the only relief sought was a declaration that the order she made was void and of no effect. However, underlying that application, was a challenge based on principles of judicial review, which might have given rise to relief under s 69 of the Supreme Court Act 1970 (NSW) if the order in question had not been spent before the hearing of the summons. Assuming that the proceedings still had utility, the authorised justice whose decision was in question, should have remained a party. The principles established in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009, a case involving constitutional relief have, as this Court has pointed out on a number of occasions, relevant operation, by analogy, as indeed the Practice Note assumes: see [42] and [43] (McHugh J), [91] (Gummow J), [153] (Kirby J) and [180] (Hayne J); see generally Aronson, at pp 700-701. 74 Fifthly, so far as the appeal papers reveal, no party appears to have taken out the orders made below. It is not clear whether any order was made as to costs. If such an order were made, it may be assumed that costs followed the event and it should accordingly be set aside. Conclusions 75 As explained above, I propose the following orders:

COMMISSIONER OF POLICE v RYAN

At a glance

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Before

Catchwords

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Judgment (42 paragraphs)

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Legislation Cited (16)

Cases Cited (25)

Cited By (9)