RYAN V. COMMISSIONER OF POLICE & ANOR [2006] NSWSC 1124

[30]

Evidentiary matters 16 In his affidavit sworn 5 November 2005, Mr. Benjamin Ryan stated that at the time of the service of the order, he asked Inspector Clarke why he was shutting the hotel. He stated that Inspector Clarke replied, "because of a succession of recent incidents". Mr. Ryan then said, "What incidents exactly? We had a meeting last Thursday and everything was okay". He stated that Inspector Clarke replied, "There were two incidents on Tuesday night. There was the incident of the fight between the two fellows and the syringe being found in the female toilets". 17 Mr. Timothy Ryan, in his affidavit affirmed on 4 November 2005, stated that he spoke to Inspector Clarke by telephone at approximately 5.05 pm on 4 November 2005. In that conversation he inquired as to the basis for the closure of the hotel and claimed that Inspector Clarke said, "It is largely related to anti-social behaviour. It relates to police officers and staff being assaulted". 18 In a later telephone conversation, Inspector Clarke referred to some incidents of anti-social behaviour as related to the application for closure and specifically referred, according to Mr. Ryan, to a scuffle that occurred on 1 November 2005 between two males and "also syringes had been found in the hotel gaming room". Inspector Clarke is stated to have made reference to members of the public as the source of information in the latter respect. Inspector Clarke is also alleged to have said, "there are known drug dealers in the hotel". 19 Later in the conversation, Inspector Clarke is said to have made reference to inadequate security arrangements for the hotel. 20 In his statement Exhibit B, Inspector Clarke states that he had a conversation on 27 October 2005 with Mr. Benjamin Ryan at the Moree Police Station concerning matters relating to conduct at the hotel. These included incidents relating to brawls and "other violence associated with the hotel". He stated that this meeting was held to ensure that the hotel acted in a manner supporting harm minimisation and the reduction of violence and anti-social behaviour in and around the premises. 21 In response to paragraph 17 of Mr. Benjamin Ryan's affidavit concerning the incident of a syringe having been found in the female toilet, Inspector Clarke identified an entry in the New South Wales Police Computerised Operating System (COPS). The entry in relation to the incident records:- " 01.11.2005 Information Report … three (independent) community sources provided information to Police indicating the presence of syringes in the female toilets whilst they (the community sources) were in attendance at the hotel on the date of November 1, 2005 (Melbourne Cup Day). A check of the toilets by a female officer (difference in time not specified) resulted in nil find. Information provided by Security Staff at the Hotel indicated that a syringe had been located one week prior on the floor (not further described). A check of the records maintained by the NSW Police Force has revealed no report of a syringe being found upon the premises." 22 In cross-examination, Inspector Clarke stated that he had a conversation with the authorised justice at the time the application for the s.104A order was made. That conversation lasted for 10 to 15 minutes. He agreed in evidence that Mr. Timothy Ryan had requested a copy of the application and supporting documents and that he had indicated that the original application was with the Court. He denied that he said that if he wanted access to the original application Mr. Ryan would have to go to the Court. He denied that Mr. Timothy Ryan said, "can I have a copy of the application and documents used in support to get the order?". He denied that he stated that he was not going to provide a copy of the documents to Mr. Ryan. 23 When taken to his statement (Exhibit B), he conceded that the document was prepared as a response to the affidavit of Mr. Timothy Ryan. He also conceded that he did not, in paragraph 17 of his statement in response to paragraph 9 of Mr. Ryan's affidavit, deny what Mr. Ryan had there stated (to the effect that Inspector Clarke stated that he was not going to provide a copy of the application and supporting documents). 24 In relation to the primary factual matters, it is clear, and I make findings accordingly, that:-

[37]

(c) That the person purporting to issue the order was not an "authorised justice" within the meaning of s.104A of the Act. 26 The argument referred to in (c) was abandoned during the hearing. 27 In his submissions on behalf of the plaintiff, Mr. Heath essentially developed two grounds. The first asserted jurisdictional error in that the material placed before the authorised justice did not establish a "significant threat or risk to the public interest" within the meaning of s.104A(3). The second asserted, that the failure to serve with the order (and a subsequent refusal and/or failure to supply on request) a copy of the material placed before the authorised justice when applying for the order constituted a breach of the rules of procedural fairness. In this latter respect, it was argued that the failure to comply with the rules of procedural fairness operated to negate the appellant's rights to challenge the service of the order upon him in judicial review proceedings. 28 In relation to the second ground, Mr. Heath made it clear that he did not contend that the requirements of procedural fairness qualified or limited the power to make an order under s.104A. The focus of the argument sought to be made was narrower than that. It was that the claimed breach of procedural fairness rules operated to invalidate the applicant's right to enforce the order. 29 The plaintiff's case, as refined in the plaintiff's additional submission was in the following terms:- "Procedural Fairness 1. It is submitted that in circumstances where the authority seeking to enforce an order pursuant to s.104A of the Liquor Act … fails or refuses to provide the material used in … support of obtaining the order either at the time of or immediately following service of the order constitutes a procedural unfairness. 2. The effect of that procedural fairness:- (a) entitles the recipient licensee to make an application for a stay (sic) operation of the order and an injunction against any authority seeking to enforce it treating it as valid; and/or (b) for the purposes (sic) final relief such a procedural unfairness operates so as to mean that service of the order was ineffective to require closure of the premises the subject of the order for the purposes of s.104A(6) of the Act; (c) in other words, the effect of the procedural fairness is the same as if the order had never been served (a footnote stated: 'This does not mean that the order itself is rendered invalid, just that it is as if the order had never been served' )." 30 In addition to this last-mentioned submission, it was also contended in the "plaintiff's submission #3":- "2. The point at which the procedural fairness obligation arises is not as to the making of the order itself but the manner in which it is carried out, ie., at the time of service." 31 The issues raised by the summons, accordingly, challenge the jurisdictional basis for the making of the order on the ground that the materials before the authorised justice could not satisfy the preconditions for the making of an order under s.104A. The legality of the enforcement of the order was argued upon the procedural fairness ground earlier outlined. I will accordingly proceed below to consider the bases subjacent to the two-fold challenged made by the plaintiff.

[65]

(d) Section 125E(2A) (prohibition on the possession or use on licensed premises of any substance that a servant of a licensee or a person suspects of being a prohibited plaint or a prohibited drug). 53 It was contended on behalf of the defendant that the material placed before the authorised justice provided sufficient information to determine that there had been numerous "serious breaches" of the Act or likely "serious breaches" and that there was a continuous pattern of violence, intoxication and drug use at the hotel preceding the closure that posed a significant threat or risk to the public interest such as to require the closure of the premises for 48 hours. Particular reliance was placed upon the six events said to be "significant" as recorded on 1 November 2005. 54 It was contended on behalf of the defendant that violence, intoxication, drug use and drug sales were all a risk to the public interest. It was further claimed that the documents established a pattern of conduct against the public interest and that there was a temporal connection established. 55 In relation to the particular incidents relied upon in the application for the order, the defendant relied upon the provisions of s.104A(3)(a) and (d), namely, a significant threat or risk where there is a threat to public health or safety or a risk of serious offences (having a maximum penalty of not less than two years) being committed on the premises. 56 The defendant also relied upon material allegedly establishing a breach in terms of s.125(1)(b), namely, permitting intoxication on licensed premises and the selling or supply of liquor to any person who, at the time, was in a state of intoxication (s.125(3)). 57 Section 125(4) provides that where a person is intoxicated on licensed premises, the licensee shall be deemed to have permitted intoxication unless he or she proves that the licensee and his or her employees took the steps set out in s.125(4A) or all other reasonable steps to prevent intoxication on the licensed premises. 58 The evidence of Inspector Clarke in cross-examination was that the documents produced to the authorising justice included the four page application dated 4 November 2005 "… with all the relevant COPS documents that were relied upon in the application. They remain with the Court." (t.39).

[76]

(e) Assessment of the material placed before the authorised justice 62 As earlier noted, the authorised justice had before her a verified statement by Inspector Clarke as to "reasonable grounds for believing" there was a prospect of a serious breach of the Liquor Act as well as for a belief that breaches had occurred in the past. The application also asserted that closure of the premises was "necessary" to prevent or reduce a significant threat or risk to the public interest. 63 The principal incidents, referred to in paragraph 3 of the application as supported by the COPS documents, generally fall into three categories. The first relates to the alleged presence and/or sale and distribution of prohibited drugs in the hotel and the alleged presence of persons stated to be known drug users. In that respect, four episodes are referred to in paragraph (3) of the application (26 October 2005, 28 October 2005 and two incidents on 1 November 2005). The second category of incidents pertains to the question of alcohol consumption. The third category relates to anti-social behaviour and events involving violence. 64 The application and supporting material placed before the authorised justice constitutes Exhibit 3 in the present proceedings. Before commenting upon that material, it is necessary to have regard to the exceptional power to effect a short-term closure of premises under s.104A. An order may only be made under the provision if there is material that is capable of satisfying an authorised justice, not merely of a breach, but that "a serious breach" of the Act either has occurred or is likely to occur on the premises. Furthermore, the authorised justice must be satisfied that the significant step of closure of the premises "is necessary" in the sense of being necessary "to prevent or reduce a significant threat or risk to the public interest". As earlier stated, the nature of the "significant threat or risk" to the public interest is to be determined having regard to the provisions of s.104A(3). 65 I have examined the material in Exhibit 3 in order to determine whether or not it is capable of satisfying the "threshold" to which I have referred in paragraph [39] above, namely, in order to ascertain whether the facts revealed in them were capable of "satisfying a reasonable person of the matters required by the statute" (see paragraph [39] above). 66 Generally speaking, one would expect that more recent incidents or events concerning hotel premises will be of greater significance in determining whether or not the preconditions of s.104A have been satisfied. That is not to say that more distant events are devoid of any significance. However, in order for an authorised justice to be satisfied that it is necessary for premises to be closed to prevent or reduce a significant threat or risk to the public interest, attention will invariably be given to the nature, extent and gravity of information pertaining to the premises at a time that is more proximate to the date upon which the authorised justice is considering the material for the purposes of s.104A. 67 The following general observations are made in relation to the material in Exhibit 3:-

[95]

• An information report summary concerning an incident on 22 October 2005. Patrons were leaving the hotel. A crowd of 50 to 60 patrons were loitering on the western side of Balo Street. A majority of the persons are noted as appearing moderately intoxicated. The report notes that "nil persons" were sighted to be smashing beer bottles present the street. Police were unable to ascertain who was consuming alcohol and who had smashed the bottles. 73 In addition to the above, the remaining information report summaries attached to the application for the s.104A order include report summaries concerning incidents on the following dates: 21 August 2005, 10 September 2005, 11 September 2005 (two), 12 September 2005 (two), 24 September 2005, 1 October 2005, 7 October 2005, 8 October 2005 (four),14 October 2005 and 15 October 2005. It is unnecessary to set out the detail concerning these incident sheets. They range from incidents involving arguments between patrons and/or the manager of the hotel, an altercation outside the hotel, a person standing on the roadway and footpath blocking cars and pedestrian traffic, abusive language directed by a male person to police, an allegation by a patron that he had been hit on the left side of the face, reference to a person who had been barred from the hotel who pushed and punched a patron on the footpath outside the hotel, an allegation of a theft from a car parked in the hotel carpark, an incident in which a person had been requested to leave the licensed premises requiring the attendance of police, a complaint by bar staff that a person had damaged a poker machine, police attendance at the hotel over a patron who had refused to leave the hotel when requested by staff, attendance by police over an allegation that a patron had stolen property from a poker machine. 74 I have reviewed the detail of the information report summaries, mindful of the fact that it is not for this Court to assess the weight to be given to the materials by an authorised justice on an application under s.104A. On the other hand, if the material is not capable of meeting the threshold test to which reference has earlier been made, in particular was incapable of satisfying a reasonable person of the matters required by the statute, then plainly it is necessary for this Court to so find. On a review of the material, I am firmly of the opinion that the material was not capable of satisfying the three preconditions set out in s.104A and which have been referred to in paragraph [41] above. The material concerning the suspected drug activity to which I have earlier referred, was insufficient, as I have already stated, but it appears that that material may well have been the trigger or occasion for the making of the application. The other material concerning incidents involving assaults, brawls, arguments and the like, were not sufficient of themselves to satisfy the preconditions. 75 Part 8 of the Act, offences, set out discrete offences designed to render illegal activities involving violence and other anti-social behaviour. The Act specifically provides in s.145 for proceedings to be taken in respect of offences under the Act which may be disposed of summarily by the Licensing Court or by a Local Court constituted by a Magistrate sitting alone. The discrete or particular incidents to which I have referred which could constitute breaches of s.125 could have been made the subject of prosecutions under the Act. 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. 76 It is clear there may be cases (eg., Elcham (supra)) where a number of incidents concerning drug activity, taken together, 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. 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. 77 For the purposes of determining whether the jurisdiction under s.104A has been properly invoked this Court is required to examine whether there was any material capable of satisfying an authorised justice in terms of the section. The decisions in Elcham (supra) and the observations of Campbell, J. in Danesi (supra) are examples of this approach. In the latter case, Campbell, J. at [11] referred to the fact that what was termed "the scrap of information" provided as evidence of serious breach of the Act and relied upon in support of the application:- "… disclosed nothing about there being any evidence which could even arguably have satisfied the magistrate that the licensee or any servant or any 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 …" 78 For the reasons outlined above, the material in support of the application made to the authorised justice was incapable of satisfying the statutory conditions and that, accordingly, the order purportedly made pursuant to s.104A was made without jurisdiction.

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(2) Procedural fairness in relation to s.104A orders 79 The conclusion which I have expressed in relation to the first ground ("jurisdiction") is sufficient to dispose of the proceedings. However, by reason of the detailed submissions made on behalf of both the plaintiff and the defendant in relation to this second ground ("procedural fairness"), I consider that the parties are entitled to a decision of the Court on that ground. I will, at the end of this judgment, address the question of relief or remedy sought in these proceedings. It is sufficient at this point to observe that the only order sought (other than costs) by the plaintiff was a declaration that the s.104A order made on 4 November 2005 is void and of no effect. An order was not specifically sought quashing the order and the nature of the relief sought was confirmed in paragraph 1 of the "outline of the plaintiff's submissions". I do note, however, that on the first day of submissions, Mr. Heath referred to "the third issue is an order seeking to quash and/or stay the order permanently …" (t.2, 28 November 2005). 80 A person affected by an order made under s.104A of the Act does not have available a statutory right of review. Section 146 of the Liquor Act provides only for an appeal to the Supreme Court on questions of law from the Licensing Court. The Supreme Court, however, retains its power to grant prerogative relief. 81 The plaintiff's essential argument is that the requirements of natural justice or procedural fairness apply to impose an obligation upon the defendant to provide at the time of service of an order made under s.104A, a copy of the materials used to support it. The plaintiff correctly argued that such rights were not removed by the Act so far as the possibility of applying to the Supreme Court for prerogative relief. Reliance was placed upon a similar argument to that propounded in the interlocutory application in Danesi, namely, that the refusal of police officers to supply the evidence on which they obtained the order had the effect of negating the right to apply for prerogative relief. This was argued upon the basis that the order, having almost immediate operation requiring closure of the hotel, meant that the refusal to provide a copy of the application and the supporting materials had the effect of making the order unreviewable for practical purposes. It was this, it was submitted, that constituted a serious procedural unfairness. 82 The plaintiff's counsel was requested to identify the specific rule of procedural fairness relied upon and said to support the claim for relief. Counsel suggested that the right to be provided with the evidence supporting an application under s.104A of the Act was an extension of the right to be heard in relation to an order affecting private rights and interests. 83 Given the protection which the law has provided to decisions affecting property interests such as licenses and the concept of "fairness" or "a duty to act fairly" in actions taken in relation thereto, the holder of a licence under the Liquor Act may, generally speaking, be considered as having a legitimate interest in ascertaining the basis upon which a s.104A order has been obtained.

[104]

(c) The obligation to disclose the basis for the making of an order 91 As has been noted above, the Liquor Act makes no provision for a review of, or appeal against, an order made pursuant to s.104A. The right of appeal is limited, as observed, in paragraph [80] above. The absence of a statutory mechanism for challenging orders made under that section is potentially relevant to the question as to whether there is a basis for the implication of an obligation that, in enforcing an order made without notice under s.104A, there is a duty to act fairly. This issue arises in a context wherein there is a potential conflict between public and private interests. Hence in Elcham v. Commissioner of Police (2001) 53 NSWLR 7, O'Keefe, J. observed (at 15 [35]) that the purpose of s.104A is the protection of the public interest as defined in s.104A(3) by ensuring that licensed premises are conducted in accordance with the law and that such characterisation of the provisions necessitates "an approach to their construction which is beneficial rather than restrictive". At the same time, O'Keefe, J. also acknowledged at [20] that the making of a s.104A order involves a significant intrusion on the business, personal and proprietary rights of a citizen. In consequence, there should be, as his Honour stated, a high degree of satisfaction in the mind of the authorised justice before acting under the section. O'Keefe, J. also observed (at 15 [35]) that because an order pursuant to s.104A is likely to have a detrimental effect on an hotelier licensee, the approach to be taken to the application of the section must recognise that (at 20 [59]):- "Protection of the rights of the citizen is effected by the interposition of the authorised justice between the police and the citizen, and the recognition by the authorised justice of the duty which is imposed on such justice in applying the section." 92 Bearing in mind the purpose and the operation of the section, O'Keefe, J. took the view (at 15 [35]) that the "approach by the authorised justice (and by the court) to the application of s.104A ought to be along the lines discussed in George v. Rockett (1990) 170 CLR 105 in relation to search warrants".

[105]

93 Whilst it is true, as Mr. Spartalis for the defendant observed, that there exists no statutory obligation to provide the material utilised in obtaining an order under s.104A (or copies thereof) to a recipient of such an order at or shortly after service of such order, that is not, in my opinion, a complete answer. 94 There is nothing in the provisions of the Act which prohibits or limits a licensee from receiving a copy of the application for the order or the materials that were utilised in obtaining it. In the event that legal advice upon the validity of a s.104A order is sought or required but a copy of the application and related documents are not served with the order, the licensee affected by it will not be in a position to receive advice, prior to the commencement of proceedings, on the question whether or not the order was validly made. This situation arose and was acute in the present case. The plaintiff had no notice of the order, which took effect 15 minutes after service and had an operative period of 48 hours thereafter. The plaintiff, having been refused copies of the material upon which the making of the order depended, could not possibly have received informed legal advice before proceedings were commenced in this Court. 95 I do not consider, in this respect, as was argued for the defendant, that it is a sufficient answer to say that a licensee affected by a s.104A order may commence proceedings and issue a summons or notice to produce for the application and supporting material to be produced to this Court. A person affected by an order is not, absent statutory provisions prohibiting disclosure, to be encouraged or taken as being required to commence proceedings in this Court "on the blind". 96 The question as to whether or not the duty to act fairly or any other discrete rule of procedural fairness requires an applicant for an order to serve copies of the application and supporting material, is not one upon which any specific authority has been cited in the course of argument. Indeed, there does not appear to be any authority precisely in point, although the judgment of the Supreme Court of Western Australia, Court of Appeal, considered in the paragraphs that follow does, in my opinion, provide guidance on the application of relevant principle. 97 In Bennett & Co. v. Director of Public Prosecutions for Western Australia [2005] WASCA 141, the Supreme Court of Western Australian made a freezing order pursuant to the Criminal Property Confiscation Act 2000 (WA). In respect of certain funds. The order was made as a result of an ex parte notice of originating motion for an examination order and a freezing order filed by the Director of Public Prosecutions in the Court. Three affidavits were filed in support of the application for the order. The application was heard ex parte pursuant to s.41(2) and s.57(2) of the last mentioned Act which provided that applications for freezing orders and for examination orders may be made ex parte. 98 Section 46 of the Act required that, as soon as practicable after a freezing order is made, the applicant must arrange for a copy of it, and a notice complying with s.46(6) of the Act to be served personally on any person who is, or may be, or claims to be, an "interested party". 99 The Full Court of the Supreme Court of Western Australia observed that the statutory procedure differed from that which the Court would normally follow where an order is made ex parte in the exercise of the Court's general jurisdiction. In that respect, the court stated:- "… if an ex parte order were made in the exercise of its general jurisdiction, for example, it would require copies of the papers upon which the order was made to be served upon the party affected. The Court's power to make orders of that kind is not expressly excluded, however." 100 The Act in Bennett & Co permitted the Court to make an order prohibiting access to the documents used in the proceedings for a freezing order. However, no such order had been made. 101 The party affected by the freezing order (Centurion) wrote to the Director of Public Prosecutions and requested copies of the ex parte application and the affidavits in support in order to finalise their submissions. The Director's reply consisted of a short statement including one to the effect that the relevant documents "will not be provided". 102 In dealing with the question of Centurion's right to access the freezing order affidavits, the Full Court stated that the fundamental principle to which regard must always be had was the following:- "Natural justice requires that each party should have an equivalent right to be heard. This means that if one party wishes to place evidence or persuasive material before the Tribunal, the other party or parties must have an opportunity to see that material and, if they wish to submit counter material and, in any event, to address the Tribunal about the material. One party may not make secret communications to the court." Pamplin v. Express Newspapers Limited (1985) 1 WLR 689 at 691 103 The Full Court at [44] went on to state that natural justice, in the sense of an opportunity to see the evidence put against a party, is a fundamental aspect of the judicial process. The Court additionally observed that there was nothing in the Act which purported to exclude the "very basic rule of natural justice to which we have referred". 104 It is important, however, in identifying the principle involved in Bennett & Co. to have regard to the context in which the Court's observations were made. In that respect, the following are noted:-

[110]

• There were potentially four particular legal courses of action, in which such participation might take place. These included the provision (with leave) for an appeal against the imposition of a freezing order pursuant to s.61(1)(f) of the Supreme Court Act 1935 (WA) ( "Restrictions on appeals" ). That is, this was a possible course of action open to Centurion that was available outside the statutory scheme. 105 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 s.104A 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 s.104A. 106 In this respect, Campbell, J. in Danesi (supra) accepted at [11] that there was a serious question to be tried in relation to the argument put in that case. That argument was to the following effect. The requirements of natural justice were not removed so far as, inter alia, the possibility of applying to the Supreme Court for prerogative relief. Further, the refusal of the police officers to supply the evidence on which they had obtained the order had the effect of negating, inter alia, the right to apply for prerogative relief given the short-term nature of the order. The refusal to provide the evidence had the affect of making the order unreviewable for most practical purposes. The argument was, accordingly, that there existed a serious procedural unfairness. 107 The right to apply for prerogative relief in relation to a s.104A order would essentially depend upon the establishment of jurisdictional error. However if the materials relied upon in obtaining the order were such that there was no basis in law for the exercise of the power under s.104A, the person affected, who would require legal advice, would equally be subjected to procedural unfairness of the kind discussed in Bennett & Co. (supra). He or she would not have available in advance of commencing proceedings the materials that purported to validate the order. 108 The Court of Appeal in Bennett & Co. considered, as a matter of general principle, cases in which a party might have a right to have ex parte orders set aside on one basis or another. In this respect, it stated at [64] as follows:- "Leaving aside for the present the particular matters raised by Centurion before Roberts-Smith, J., then, and turning rather to questions of general principle, ex parte orders may be set aside if it is demonstrated that there was material non-disclosure, or that on the basis of new material, the full facts and circumstances had not been appreciated, or that the order was made without jurisdiction: Bell Group NV (In liq.) v. Aspinall (1998) 19 WAR 561. If it was open to Centurion to apply to have the order set aside on the basis of either material non-disclosure, or on the basis that there were additional materials to which the Court was not directed at the time at which the order was made, it follows that Centurion must, in order to be able to make such an application effectively, know what material was disclosed to the Court at the time of the making of the order, so as to be able to point to any relevant omissions or to provide material to dispute or correct any assertions which it considered required disputing or correcting." 109 The general principle to which the Full Court here referred as applied to interlocutory orders may, in my opinion, be extended to statutory orders affected by jurisdictional error. As earlier discussed, an examination of the application and supporting materials will usually be necessary before advice can be given as to whether or not jurisdiction to make the order under s.104A existed and the statutory power was validly invoked. 110 I am, accordingly, of the opinion that, there being no suggestion of public interest immunity attaching to the underlying materials or any other basis for withholding them, the plaintiff was entitled to be served with the application and a copy of the supporting materials and that the failure and later refusal to provide them constituted breaches of the obligation that existed to act fairly. These were not, of course, breaches in relation to the making of the order but in seeking to enforce it by a process that denied the party affected the opportunity of knowing the basis upon which the order was obtained. That, in turn, undermined the plaintiff's ability to determine whether the order had been validly made. In other words, the power to enforce the order was exercised in breach of the duty to act fairly. The discretion as to declaratory relief 111 Where an order is made under s.104A and there has been a refusal to supply copies of the application and supporting materials, it may be expected that in many if not most circumstances, this Court will, as in Danesi (supra) and as occurred in the present case, order a stay on the order and ancillary relief until copies of the materials are provided to the person affected. 112 The stay ordered in the present case operated effectively to protect the plaintiff's interests against closure from the time the stay order operated. This Court has undoubted power to grant declaratory relief whether or not any consequential relief is or could be claimed: s.75 Supreme Court Act 1970; Ainsworth v. Criminal Justice Commission (1992) 175 CLR 564 per Mason, CJ., Dawson, Toohey and Gaudron, JJ. at 581-582. See also the Commonwealth of Australia v. Sterling Nicholas Duty Free Pty. Limited (1972) 126 CLR 297 per Barwick, CJ. at 305; Telstra Corporation Limited v. Australian Telecommunications Authority (1995) 133 ALR 417 per Lockhart, J. at 424-425; Aussie Airlines Pty. Limited v. Australian Airlines & Ors Limited (1996) 139 ALR 663 at 670-671 per Lockhart, J.; J.N. Taylor Holdings (In liq.) v. Bond (1993) 59 SASR 432 at 437 per King, CJ. 113 In Ainsworth (supra), Brennan, J. stated (at 596), the making of a declaration and the terms in which, if made, it should be framed are in the Court's discretion. His Honour cited Chief Constable of North Wales Police v. Adams (1982) 1 WLR 1155 wherein Lord Brightman observed (at 1172):- "It would, to my mind, be regrettable if a litigant who establishes that he has been legally wronged, and particularly in so important a matter as the pursuit of his chosen profession, has to be sent away from a court of justice empty-handed save for an order for the recoupment of the expense to which he has been put in establishing a barren victory." 114 In the present proceedings, it might be open to argument that by reason of the requirement arising under the s.104A order for the hotel to be closed from 5.00 pm on 4 November 2005 until the stay order was made by this Court on 5 November 2005 that the plaintiff has in a sense been wronged by the making of the s.104A order and by its enforcement in breach of the defendant's duty to act fairly in accordance with the determination which I have made. 115 There has been no submission made that, in the event that the grounds relied upon by the plaintiff were made out, the Court should exercise its discretion to refuse the making of the declaration sought. In circumstances in which an invalid order has adversely affected the plaintiff's right to trade, even though on a limited basis and in circumstances in which a stay order was granted in respect if it, I consider that it is appropriate to exercise the discretion in favour of making a declaration as sought.

[111]

General observations upon the practice followed in enforcing s.104A orders 116 I make two remaining observations. The first is that there may be circumstances in which certain specific information contained within an application and supporting materials is such as to attract public interest immunity as, for example, where disclosure of the material might lead to the disclosure of the identity of a police informer. There may be other valid public interest immunity grounds in particular cases. In those classes of case, there would not exist an obligation to disclose such information. The second observation is 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 supporting materials for not to do so may well have the consequence, as occurred in Danesi and in the present circumstances, that the order will be met with an application for a stay order and ancillary relief which, if granted, can have the practical effect of negating, in whole or in part, the operation of an s.104A order. Accordingly, it would seem that, as a matter of general principle, exceptional cases apart, it is in the interests of both the person making the application for the order under s.104A and for the person affected, that a copy of the application and material be served with the order. 117 I have referred earlier in this judgment (paragraph [79]) to the nature of the relief sought in the summons and that no specific order was sought to quash the s.104A order. There are two observations to be made in relation thereto. The first is that the fact that the order was sought to be enforced, on the findings which I have made, in breach of the duty to act fairly is derivable from the reasons which have been stated in this judgment. Secondly, as noted in paragraph [79], although the summons was not amended to seek an order quashing the s.104A order, nonetheless that issue was raised in the course of submissions. However, in the circumstances of these proceedings, the making of an order by way of prerogative relief quashing the s.104A order may be said to be of little utility. I, however, reserve to the parties the right to make any further submissions on the question of whether any further relief can or should be granted within 14 days of the date of judgment. 118 For the reasons earlier stated, the plaintiff is entitled to a declaration essentially in the terms sought in the summons. I accordingly order and declare:- That the order purportedly made pursuant to s.104A of the Liquor Act 1982 (NSW) addressed to the plaintiff, Benjamin Michael Ryan, in respect of premises known as Royal Hotel, Heber Street, Moree, dated 4 November 2005 is void and of no effect. 119 I reserve the question of costs in order to allow the parties to make any written submissions within 21 days of the date of this judgment. **********

RYAN V. COMMISSIONER OF POLICE & ANOR [2006] NSWSC 1124 - NSWSC 2005 case summary — Zoe

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Judgment (113 paragraphs)

Legislation Cited (7)

Cases Cited (23)