Commissioner of Police (NSW) v Gibson [2020] NSWSC 953

Supreme Court New South Wales

Medium Neutral Citation: Commissioner of Police (NSW) v Gibson [2020] NSWSC 953 Hearing dates: 23 and 24 July 2020 Decision date: 26 July 2020 Jurisdiction: Common Law Before: Ierace J Decision: (1) In respect of the plaintiff's summons, grant the plaintiff's application for an order pursuant to s 25(1) of the Summary Offences Act 1988 (NSW) prohibiting the public assembly in the Sydney Central Business District on 28 July 2020. (2) In respect of the defendant's cross-summons, refuse the defendant's application for a declaration pursuant to s 75 of the Supreme Court Act 1970 (NSW). (3) Each party to pay their own costs of each application. Catchwords: PUBLIC ASSEMBLY – Summary Offences Act 1988 (NSW) – whether order should be made pursuant to s 25(1) prohibiting the holding of a public assembly ADMINISTRATIVE LAW – judicial review – apprehended bias – whether public statements by delegator vitiate the decision made by the delegate on the ground of apprehended bias ADMINISTRATIVE LAW – judicial review – apprehended bias – exceptions to bias rule – necessity ADMINISTRATIVE LAW – reviewability – jurisdiction – whether the Supreme Court has jurisdiction to entertain the application for a prohibition order under s 25 of the Summary Offences Act 1988 (NSW) – whether threshold requirement in s 25(2)(c) of the Summary Offences Act has been fulfilled – whether materials were properly considered in light of public statements made by the repository of power – whether application could properly be considered within a 17-minute time frame CONSTITUTIONAL LAW – implied constitutional freedom of political communication – whether s 25 of the Summary Offences Act 1988 (NSW) must be read down so as not to infringe the implied constitutional freedom of political communication Legislation Cited: Civil Procedure Act 2005 (NSW), s 4 Commonwealth Constitution Judiciary Act 1903 (Cth), s 79B Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020 (NSW), cll 18, 24 Public Health Act 2010 (NSW), s 7 Summary Offences Act 1988 (NSW), ss 22, 23, 24, 25 Summary Offences Regulation 2015 (NSW) Supreme Court Act 1970 (NSW), s 75 Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Bassi v Commissioner of Police (NSW) [2020] NSWCA 109 Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43 Clubb v Edwards; Preston v Avery (2019) 93 ALJR 448; [2019] HCA 11 Comcare v Banerji (2019) 93 ALJR 900; [2019] HCA 23 Commissioner of Police (NSW) v Supple [2020] NSWSC 727 Commissioner of Police v Bassi [2020] NSWSC 710 Commissioner of Police v Gray [2020] NSWSC 867 Commissioner of Police, New South Wales Police Force v Kumar (OBO National Union of Students) [2020] NSWSC 804 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 6 Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31 McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 23 McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 Minister for Home Affairs v Omar [2019] FCAFC 188 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 Tickner v Chapman (1995) 57 FCR 451; [1995] FCAFC 1726 Category: Principal judgment Parties: Commissioner of Police (NSW Police Force) (Plaintiff) Padraic Gibson (on behalf of Dungay Family) (Defendant) Attorney General for New South Wales (Intervener) Representation: Counsel: M Spartalis (Plaintiff) F Graham; C Longman (Defendant) M Sexton SC; E Jones (Intervener)