Danesi v Commissioner of Police [2003] NSWSC 868 | Case summary

(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 two 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 six 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." 4 The evidence then before me showed that there was no notice to the applicant of intention to make the application to the Licensing Magistrate, and that the evidence which was before the Licensing Magistrate had not been provided to the applicant either before or after the order was made - the applicant had only been provided with the order of the Licensing Magistrate. A specific request by the solicitor for the applicant to be provided with the evidence which had been before the Magistrate was refused, but the solicitor for the applicant was told, by the police officer in charge of the matter, that the serious breach of the Liquor Act 1982 which the Magistrate had been told had occurred or was likely to occur was "the number of OD's which had occurred that needed transportation and had indicated that they had been at ARQ and the ongoing supply of drugs on the premises". 5 The basis of the application before me was, in part, that there had been a denial of natural justice in the initial obtaining of the order. Section 104B of the Liquor Act 1982 provides that it is possible for an order under section 104A to be applied for by telephone, or facsimile, and the order furnished by facsimile. As well, the general circumstances in which orders under section 104A may be made are ones of urgency. Thus I was not prepared to act upon the ground of denial of natural justice in obtaining the order, because it seemed to me that it may well have been the case that Parliament had, by implication, removed the requirement for adherence to natural justice in the making of an order under section 104A. 6 Section 125E of the Liquor Act 1982 provides, so far as relevant: "(1) A licensee shall not permit his or her licensed premises to be used for the sale of: (a) … (b) any substance that the licensee suspects of being 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 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) … (b) any substance that the servant or person suspects of being 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 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 substance concerned was not … a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985 ." 7 The offence under section 125E(1), in so far as it concerned licensed premises being used for the sale of prohibited drugs, required the licensee to suspect that the substance being sold was a prohibited drug. Likewise, the prohibition under section 125E(1A) required the licensee to suspect that the substance being possessed or used on the premises was a prohibited drug. As well, some degree of knowledge or maybe at least suspicion must exist that sale, possession or use of such a product is going on on the premises, before it can be said that anyone is permitting the premises to be used for such an activity. 8 There was evidence before me of the applicant having no prior convictions relating to section 125E, and some evidence of system aimed at removing anyone found with prohibited drugs from the premises. 9 Section 146 Liquor Act 1982 provides for an appeal to the Supreme Court on questions of law from the Licensing Court. As well, the Supreme Court retains its power of issuing prerogative orders to the Licensing Court. 10 The argument which was put to me was that the requirements of natural justice were not removed so far as this right of appeal was concerned, or concerning the possibility of applying to the Supreme Court for prerogative relief. The refusal of the police officers to supply the evidence on which they had obtained the order had the effect, it was submitted, of negating the rights of appeal, or the right to apply for prerogative relief. When the order operated instantly on being made, and was short-term, the refusal to provide the evidence had the effect of making the order unreviewable for most practical purposes. This, it was submitted, was a serious procedural unfairness. 11 It seemed to me that there was a serious question to be tried concerning that matter. As well, the scrap of information which had been provided about the serious breach of the Liquor Act which was relied on, disclosed nothing about there being any evidence which could even arguably have satisfied the Magistrate that the licensee or any servant or other person in charge had, or would have, the sort of knowledge or suspicion that sales, possession or use of what might be prohibited drugs was occurring on the premises, which is necessary for such sale, possession or use to be permitted. There was, therefore, a serious question to be tried that the Magistrate had acted without jurisdiction. The evidence of no previous convictions, and of system, though slight in itself, was consistent with this. 12 In those circumstances, I granted an injunction, the point of which was to protect the integrity of the appeal or review process. 13 I will not list here the matters relevant to the balance of convenience that I took into account. 14 One important matter was that it was submitted to me that, even though the order which the Licensing Magistrate had made would be spent by 11 a.m. on the day after I made it, there was still a point in the appeal continuing, because whether or not a valid order under section 104A had been made was something which was relevant to the ongoing status of the licence. 15 In those circumstances, I made orders upon undertakings which included: "The plaintiff undertaking to diligently prosecute to finality proceedings appealing against the order under s 104A made 14 September 2003 relating to ARQ Sydney, and alternatively, applying for prerogative relief in relation to that order to quash it." 16 The orders which I made were: "1. The said order is stayed pending the hearing of that appeal and application for prerogative relief. 2. The first defendant is ordered, until the hearing of the said appeal and application for prerogative relief, not to treat the said order as valid." 17 The first defendant in the application was the Commissioner of Police. 18 The orders took that form because it seemed to me that there was considerable force in the view that it was not open to the Commissioner to simply ignore the order while it remained on foot, and that a Court could not order him to ignore it, whilst the order retained validity. In coming to that view I was assisted by the view which Sperling J had expressed in Visalli v Commissioner of Police [2001] NSWSC 360, unreported, 2 May 2001, BC200102044 at [15] that there was probably no jurisdiction to injunct the Commissioner of Police from carrying out an order which was made under section 104A. However, if the order was stayed, it would be open for the Commissioner to then be injuncted from treating the order as valid; and the stay could be granted to protect the integrity of the appeal process. 19 The matter was stood over to today before the Duty Judge. At that time, the parties had reached an agreement, subject to some conditions, that the summons be dismissed with no order as to costs. 20 The matter was referred to me by the Duty Judge. 21 Upon the matter coming before me, I explained to the parties the basis of the reasoning upon which I had granted the injunction. 22 The plaintiff sought from me, first, confirmation that the dismissal of the summons would have the effect that the undertaking which had been given, in the terms which I have set out, had come to an end. I stated that in my view dismissal of the summons would not have that effect, and that it would be necessary for the plaintiff to be expressly released from the undertaking if the undertaking was to come to an end. Were any other course to be adopted, then the plaintiff, having obtained the injunction at the price of undertaking to prosecute an appeal in which the merits of the matter would be properly investigated, would end up getting the practical benefit of the injunction, without paying the price. 23 I did say, however, that if the Commissioner, with knowledge of the basis on which the injunction had been ordered, consented to the undertaking being discharged, I would discharge it. I adjourned so counsel for the Commissioner could take instructions. 24 Upon resuming I was informed that the Commissioner consented to the undertaking being discharged. The Commissioner also consented to other orders being made which had the effect of completely disposing of the proceedings. 25 By consent, I make the following orders:

Danesi v Commissioner of Police

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Judgment (10 paragraphs)

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