Commissioner of Police v Supple [2013] NSWSC 1311

Supreme Court New South Wales

Medium Neutral Citation: Commissioner of Police v Supple [2013] NSWSC 1311 Hearing dates: 11 September 2013 Decision date: 11 September 2013 Jurisdiction: Common Law Before: Davies J Decision: Summons dismissed Catchwords: POLICE - rights powers and duties - public assembly - right of Commissioner to apply to the Court - notice of intention to hold a public assembly not served seven days or more before proposed assembly date - no jurisdiction to file summons to prevent assembly Legislation Cited: Interpretation Act 1987 Summary Offences Act 1988 Category: Principal judgment Parties: Commissioner of Police (Plaintiff) James Supple (Defendant) Representation: Counsel: D Jordan SC and B Baker (Plaintiff) In person (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) In person (Defendant) File Number(s): 2013/274254

Judgment 1These proceedings commenced by Summons filed 10 September 2013 and were served on short notice returnable today. The proceedings seek an order under s 25(1) of the Summary Offences Act 1988 prohibiting the holding of a public assembly, being that referred to in the Notice of Intention to Hold a Public Assembly signed by the Defendant and dated 6 September 2013. 2The Notice of Intention to Hold a Public Assembly was indeed dated 6 September and was received by the Commissioner of Police on that day. The Notice indicated that a public assembly and procession were to be held at approximately 5 o'clock on Friday 13 September 2013 commencing at Town Hall Square. The procession would then move east up Bathurst Street and left into Pitt Street to premises at 270 Pitt Street. Thereafter it would return via Park Street to the Town Hall. 3The procedures set out in s 25(2) of the Act were otherwise followed involving consultation between the Police and the present Defendant who had given the Notice. 4The sticking point between the parties concerning the assembly and procession was the time of the proposed procession to Pitt Street. It was said to conflict with traffic requirements at that time and on that day of the week. 5When the Summons was returnable this morning before me Mr Jordan of Senior Counsel raised the issue of whether this Court had jurisdiction to entertain the Summons. That arises in this way. There is set up in the Act a twofold procedure depending on whether the notice served by the proposed organiser was served less than seven days or was served seven days or more before the date upon which it was proposed to hold the public assembly. If the former the organiser of the assembly can apply under s 26 of the Act. If the latter the Commissioner may apply under s 25. 6The assembly is to be held on the 13th and the Notice was served on the 6th. On an ordinary reckoning that was not seven days before the date specified in the Notice for the assembly. If there was any doubt about that, s 36 of the Interpretation Act 1987 would make that clear because the day of the giving of the notice would be excluded. That would mean that there was not seven days or more before the date specified in the Notice. The Notice would need to be served by no later than Thursday 5 September. 7That appears to me to be a jurisdictional matter. The power for the Commissioner to apply to the Court arises only by virtue of the Act and "if the notice was served 7 days or more before the date specified in the notice". 8In those circumstances there is no alternative but to dismiss the Summons.