ALFY'S PRESTIGE SMASH REPAIRS PTY LTD v LAUER AND ORS [1992] NSWCA 5

ALFY'S PRESTIGE SMASH REPAIRS PTY LTD v LAUER AND ORS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, CLARKE and HANDLEY JJA 16-17 November 1992, 11 December 1992

[1992] NSWCA 5

ADMINISTRATIVE LAW — ADMINISTRATIVE SCHEME BY POLICE WITHOUT SPECIFIC STATUTORY SUPPORT — WHETHER BENEFICIARY OF SCHEME HAD LEGITIMATE EXPECTATION — WHETHER POLICE HAD DUTY OF PROCEDURAL FAIRNESS.

ADMINISTRATIVE LAW — Administrative action — police establish roster system to fairly allocate towing work in disposition of police among licensed tow truck operators — system lacked express statutory basis — police remove licensed operator from roster without notice and without hearing — whether police had a duty of procedural fairness — Equity Division decides no substantial question to be tried — refuses interlocutory injunction — application for leave to appeal — whether licensed operator had legitimate expectation. Held: The claimant following its admission to the roster had a legitimate expectation which attracted a duty of procedural fairness — claimant therefore established existence of substantial question to be tried — convenient course to allow claimant to make further application for interlocutory injunction to Equity.

ORDERS

1. Leave to appeal refused.

2. Costs of the application for leave to be costs in the proceedings in the Equity Division.

Mahoney, Clarke and Handley JJA This is an application for leave to appeal from a decision of Windeyer J given on 3 November. The Judge rejected an application by the claimant for an interlocutory injunction restraining the defendants from acting upon a decision by the Police Patrol Commander at Mt Druitt suspending the claimant from the rostered. tow book maintained by the Mt Druitt Police. The decision to suspend was made without giving the claimant any opportunity to be heard. The critical issue in the proceedings was whether it had a right to be heard before any such suspension was put into effect.