MARSH and ORS v CLIFT and ORS [1991] NSWCA 193

MARSH and ORS v CLIFT and ORS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, KIRBY P and SAMUELS JA 3 July 1991, 3 July 1991

[1991] NSWCA 193

Gleeson CJ This is an appeal from a decision of Mr Justice Newman in relation to some proceedings commenced in this Court by way of challenge to a decision of the Licensing Magistrates given in June 1990.

The proceedings in this Court were compound in nature. In part they involved an appeal pursuant to the provisions of s146 of the Liquor Act 1982 and in part they involved an application for relief in the nature of an order of mandamus based upon what was claimed to have been a denial of natural justice on the part of the Licensing Magistrates. Mr Justice Newman decided the second of those two matters in favour of the plaintiff in the proceedings before him and made no decision in relation to the first of the two matters. His Honour thereupon made a declaration that the Licensing Court had failed to afford natural justice to the plaintiff in its decision in the proceedings in question and directed that the matter be remitted to the Licensing Court to be dealt with according to law.

The first, third, fourth, fifth, sixth and seventh defendants in the proceedings before Mr Justice Newman have appealed to this Court against his Honour's decision in relation to what I have described as the second issue. The respondents to that appeal are the plaintiff in the proceedings before Mr Justice Newman and also the Metropolitan Licensing Inspector. The plaintiff has also cross-appealed in relation to his Honour's failure to resolve the first issue in favour of the plaintiff and the argument sought to be advanced in support of that cross-appeal is alternatively propounded on the basis of a notice of contention. In short, therefore, the issue as to the alleged denial of natural justice comes before us by way of the appeal and the issue as to the alleged error of law comes to us by way of either the cross-appeal or the notice of contention.