Duffy v Independent Liquor and Gaming Authority [2016] NSWSC 1062

Supreme Court New South Wales

Medium Neutral Citation: Duffy v Independent Liquor and Gaming Authority [2016] NSWSC 1062 Hearing dates: 17 May 2016 Date of orders: 05 August 2016 Decision date: 05 August 2016 Jurisdiction: Common Law Before: Davies J Decision: 1. Extend time for the filing of the Summons to 1 December 2015 2. Summons dismissed. 3. The Plaintiffs are to pay the Defendant's costs. Catchwords: ADMINISTRATIVE LAW – judicial review – licensee of hotel with extended trading authorisation applies to surrender ETA – application not notified by Authority to owners of hotel - application approved by Authority – licensee under mistaken belief that surrender was temporary – application to Authority to rescind surrender – whether owners entitled to procedural fairness before surrender accepted – whether acceptance of surrender was a nullity - procedural fairness not denied

ADMINISTRATIVE LAW – judicial review - whether licensee's mistake was analogous to fraud –– whether error in Authority's refusal to revoke surrender – whether Authority could re-exercise its power to accept surrender – power to revoke under Interpretation Act s 48 - whether provisions of Liquor Act showed contrary intention to operation of s 48 – whether acceptance of surrender could be set aside for having been made on a wrong factual basis – whether wrong factual basis shown – decision not made on wrong factual basis

LIQUOR LAW – licensing – extended trading authorisation – surrender by licensee – whether owners entitled to procedural fairness – whether Authority entitled to deal with licensee Legislation Cited: Acts Interpretation Act 1901 (Cth) Interpretation Act 1987 (NSW) Liquor Act 1982 (NSW) Liquor Act 2007 (NSW) Private Health Insurance Act 2007 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No. 1) (1991) 32 FCR 219 Dallikavak v Minister of State for Immigration and Ethnic Affairs (1985) 9 FCR 98 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 Hornsby Shire Council v Porter (1990) 19 NSWLR 716 Jabetin Pty Ltd v Liquor Administration Board [205] NSWCA 92; (2005) 63 NSWLR 602 Kioa v West (1985) 159 CLR 550 Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400 Miller v Australian Cycling Federation Inc [2012] WASC 74 Minister of Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 Minister for Immigration and Multicultural and Indigenous Affairs v Craig [2004] FCAFC 294; (2004) 141 FCR 157 O'Sullivan v Farrer (1989) 168 CLR 210 Orthotech Pty Ltd v Minister for Health [2013] FCA 230; (2013) 211 FCR 241 Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332 Phytologic Pty Ltd v The Secretary, Department of Health and Aging, Commonwealth of Australia [2012] FCA 1407; (2012) 209 FCR 48 Sunset Investments Pty Limited v Casino Liquor and Gaming Control Authority [2010] NSWSC 1411 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 Tooheys Ltd v Housing Commission of New South Wales (1953) 53 SR (NSW) 407 Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 Category: Principal judgment Parties: Neville Ray Duffy (First Plaintiff) Noeline Elaine Duffy (Second Plaintiff) Independent Liquor and Gaming Authority (Defendant) Representation: Counsel: M Robinson SC & S McGee (Plaintiffs) J S Emmett (Defendant)