PLAK v SUTHERLAND [1988] NSWCA 115

PLAK v SUTHERLAND

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy P, MAHONEY and CLARKE JJA 7 June 1988, 12 August 1988

[1988] NSWCA 115

KEY WORDS: LIQUOR — PREROGATIVE WRITS LIQUOR — licensed premises — variation of licence by appeal to Full Bench of Licensing Court — transfer of licence to new licensee — Full Bench holds no jurisdiction to hear appeal following Schultz v Jones & Ors (1986) 6 NSWLR 467 — parties agree that Full Bench has no jurisdiction — application for order in the nature of mandamus refused by Carruthers J — appeal to Court of Appeal — subsequent reversal of Schultz in Metropolitan Licensing Inspector v Schultz, unreported, CA, 10 March 1988; (1988) NSWJB 23 — proper course for Court of Appeal to take, considered — held: (Kirby P and Mahoney JA; Clarke JA dissenting) Matter to be returned to the Full Bench to be dealt with in accordance with CA decision — each party to bear his own costs. Metropolitan Licensing Inspector v Schultz applied. Observations by Kirby P and Clarke JA on the extent to which parties should be held to the course which they adopted below following reformulation of the law Cropper v Smith (1884) 26 Ch D 700, 710; O'Sullivan v Watson (1986) 7 NSWLR 693 and The Nominal Defendant vy Cameron & Ors, unreported, CA 2 August 1988 considered. PREROGATIVE WRITS — mandamus — discretionary nature of — references by Kirby P and Mahoney JA to the ordinary expectation that order will be made where public officer has not performed, or has refused to perform, a public duty. R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Limited (1948-49) 78 CLR 389 applied — where rights of the public are involved, not just those of the parties, order should normally be made — The Mayor & Assessors of the City & Borough of Rochester v The Queen (1858) EL B & EL 1024,1033 applied. Liquor Act 1982 s104.