Barber v Law Society of NSW (No 2)

[2001] NSWSC 361

CITATION:	Turnbull & Ors v Armati & Ors [2001] NSWSC 361
FILE NUMBER(S):	SC 11307/01
HEARING DATE(S):	2 May 2001
JUDGMENT DATE:	4 May 2001
PARTIES :	John Manning Turnbull on behalf of the Liverpool Catholic Club Limited Raymond Roy Stewart on behalf of John Edminson VC Memorial Club Co-operative Limited Gregory Pickering on behalf of the Mount Pritchard District and Community Club Limited David Bruce Armati LCM Daphney Cock LCM Malcolm Beveridge LCM The Licensing Court of New South Wales John Patrick Ballesty on behalf of the Canterbury Leagues Club Limited
JUDGMENT OF:	Sperling J at 1

LOWER COURT JURISDICTION :	Licensing Court of NSW
LOWER COURT FILE NUMBER(S) :	178670/00 185465/00
LOWER COURT JUDICIAL OFFICER :	Armati LCM, Cock LCM, Beveridge LCM

COUNSEL :	Mr Finch with Mr Costigan for the Plaintiffs Mr Officer QC for the fifth Defendant Mr Lawry for the Director of Liquor and Gaming (not yet joined)
SOLICITORS:	Phillips Fox for the Plaintiffs
CATCHWORDS:	Interlocutory Injunction - no question of principle
DECISION:

- 2 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Sperling J

Friday, 4 May 2001

11307 / 01 Turnbull & Ors v Armati & Ors

1 On 2 May 2001, I dismissed the application made in paragraph 4 of a notice of motion in the present proceedings. These are my reasons for that decision.

2 When the application was made, late on 2 May 2001, proceedings were part heard in the Licensing Court (the proceedings). In the proceedings, the present plaintiffs are objectors, the second and third defendants are the members of the Licensing Court sitting on the case, the fourth defendant is the Licensing Court, and the fifth defendant is the applicant in the proceedings on behalf of Canterbury Leagues Club Limited. The application in the proceedings is for endorsement of the applicant club’s certificate of registration to permit it to operate on additional premises.

3 Pending the hearing of a summons to restrain the first and second defendants from continuing to hear the proceedings, an order was sought by the notice of motion for the same relief on an interlocutory basis. It was that application that I dismissed.

4 I was informed of the factual background to the application from the bar table, without objection.

5 As at 2 May 2001, the hearing of the proceedings was in its sixteenth day. The evidence was completed. 2 and 3 May had been set aside by the Court for addresses. There was the possibility that addresses might be completed in one day. Addresses would be followed by a determination, possibly ex tempore, possibly reserved.

6 The submissions did not begin as planned at 10am on 2 May. In lieu of that, the present plaintiffs asked the first and second defendants to disqualify themselves from the further hearing of the proceedings. The consequence of doing so would have been that the hearing would have to commence afresh at a future date before a differently constituted bench. The grounds for the request was apprehended bias. It is unnecessary to specify that assertion further because it was common ground before me that the plaintiffs have an arguable case that the relevant members of the Court should have disqualified themselves. It was also common ground that the plaintiffs had made their request for disqualification as soon as was practicable.

7 During the afternoon of 2 May, the first and second defendants responded to the request for disqualification, declining to disqualify themselves. Hence the application to me late in the day on 2 May.

8 In view of the concession that the plaintiffs had an arguable case, the issue before me was where the balance of convenience lay.

9 It was common ground that, if the hearing of the proceedings were halted by interlocutory order at the stage they had reached on 2 May, it might not have been possible for the Licensing Court to resume the hearing until as late as December.

10 It was common ground that, if the plaintiffs were right in their contention that the first and second defendants ought to have disqualified themselves, an application to quash a decision adverse to them by an order in the nature of prerogative relief would be available. In other words, the plaintiffs would not lose the opportunity of protecting themselves against an adverse determination, allegedly affected by apprehended bias, if the decision were given before their claim for final injunctive relief was heard.

11 It was further common ground that, if the decision in the proceedings was favourable to the fifth defendant, it would be a long time before the fifth defendant would be in a position to commence construction of the proposed additional premises. The plaintiffs would, accordingly, have the opportunity of an application for relief against an adverse decision in the proceedings before the plaintiff suffered any adverse effect arising from such a decision.

12 The prejudice that it was alleged the plaintiffs would suffer if the proceedings were allowed to continue was as follows. It was said that, if the proceedings were allowed to continue and if there was a decision adverse to the plaintiffs, subsequently quashed by order of this Court, the proceedings would then be heard by a bench of the Licensing Court, differently constituted, in the context of another bench of the Court having found against the plaintiffs on the merits. That, it was argued, would be prejudicial to the plaintiffs.

13 I did not accede to that submission. A differently constituted bench would not be influenced by the prior determination.

14 Tending in the opposite direction, there were the following considerations. If the proceedings had been halted and the substantive claim for injunctive relief were subsequently to fail, a proper and regular determination of the proceedings would have been substantially and needlessly delayed.

15 Secondly, if the proceedings were allowed to continue there was the prospect that the proceedings might be decided favourably to the plaintiffs, thereby avoiding any need for the relief now sought.

16 In these circumstances, the balance of interest was plainly in favour of allowing the proceedings to continue, rather than halt them pending a hearing of the claim for final injunctive relief.

17 Those are my reasons.

-oOo-

Last Modified: 05/07/2001