El-Mir v Commissioner of Police [2004] NSWSC 17

New South Wales Supreme Court

CITATION : El-Mir v Commissioner of Police [2004] NSWSC 17 HEARING DATE(S) : 23 and 27 January 2004 JUDGMENT DATE : 27 January 2004 JURISDICTION: Equity JUDGMENT OF : Hamilton J DECISION : Defendant ordered to pay costs of successful plaintiff.

CATCHWORDS : PROCEDURE [553] - Costs - General rule - Costs follow the event - Costs of whole action - Generally. LEGISLATION CITED : Security Industry Act 1997 s 15(7) PARTIES : Sam El-Mir (P) Commissioner of Police (D) FILE NUMBER(S) : SC 1200/04 COUNSEL : W Brewer (P) McLaughlin, Solicitor (D) SOLICITORS : Sullivans Solicitors (P) No appearance (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

TUESDAY, 27 JANUARY 2004

1200/04 SAM EL-MIR v COMMISSIONER OF POLICE JUDGMENT 1 HIS HONOUR: In this matter the Commissioner of Police has consented to a declaration that the suspension of various licences of the plaintiff under the Security Industry Act 1997 ("the SIA") should be declared invalid and that there should be a permanent injunction restraining the Commissioner from acting upon the basis of the notice purporting to effect that suspension. 2 The matter has not proceeded to a contested hearing before me, but plainly the basis on which the Commissioner has made these concessions and, in my view advisably so, is that the notice is in very unsatisfactory form. It does not state grounds on which each of the four notices is to be suspended. It would not permit the plaintiff in any effective way to show cause why the suspended licenses should not be revoked. There is reference in the notice to s 15(7) of the SIA, which is to the effect that the Commissioner is not required to give reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information. However, the effect sought to be given to that provision under the notice that was served is entirely unclear. Frankly, on the material before me, had I been called on to determine the validity of the notice, as presently minded, I should have found it invalid. However, as I have said, the Commissioner has not sought to uphold the notice. 3 However, the Commissioner has opposed the plaintiff having the costs of the proceedings. But in the circumstances set out above, it is my view that the inevitable result of the plaintiff's application for costs is that there should be an order that the defendant pay the plaintiff's costs of the proceedings. 4 Whilst I do not seek in any way to constrain the exercise by the Commissioner of Police of his discretion and functions under the SIA, I should say that it does seem to me that it is undesirable, if it can at all be avoided, that notices suspending licences should be served at 4.30 pm on Friday when there is a risk that that will threaten the public interest by aborting security arrangements over a weekend, particularly a holiday weekend.