RYAN V. COMMISSIONER OF POLICE & ANOR [2006] NSWSC 1124

New South Wales Supreme Court

CITATION : RYAN V. COMMISSIONER OF POLICE & ANOR [2006] NSWSC 1124 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 28 November 2005/29 November 2005/13 December 2005

JUDGMENT DATE : 27 October 2006

JURISDICTION : CommonLaw

JUDGMENT OF : Hall J at 1

DECISION : A declaration that the order purportedly made pursuant to s.104A of the Liquor Act 1982 (NSW) addressed to the plaintiff, Benjamin Michael Ryan, in respect of premises known as Royal Hotel, Heber Street, Moree, dated 4 November 2005 is void and of no effect. I reserve the question of costs in order to allow the parties to make any written submissions within 21 days of the date of this judgment.

CATCHWORDS : Administrative Law - Liquor Law – penal and quasi-penal provisions – harm minimisation provisions of the Liquor Act 1982 (NSW) – short-term closure order regime s.104A order for closure of hotel premises void for jurisdictional error - procedural fairness in enforcing an order – whether the material the basis of a short-term closure order made ex parte under s.104A Liquor Act 1982 (NSW) should be served on the hotelier licensee with the closure order – whether the duty to act fairly extends to the making available to the hotelier licensee the material the basis of an ex parte order. - Jurisdiction, practice and procedure – warrants and other similar incidental powers – jurisdictional error – independent scrutiny limited to the question of the question as to whether the material in the application capable of satisfying authorised justice of statutory preconditions - judicial review of the making of a short-term closure order under s.104A Liquor Act 1982 (NSW) is restricted to the question whether the order is regularly made, as in the case of the review of warrants, where the relevant question is whether the warrant was regularly issued - duty to act fairly in enforcing order for closure of hotel premises made on ex parte application - refusal to provide material on or after service of order, used in support of application for s.104A order a breach of the duty to act fairly - declaration made that s.104A order void and of no effect.