Buckley & ors v May & ors

[2007] NSWSC 1519

CITATION:	Buckley & ors v May & ors [2007] NSWSC 1519
HEARING DATE(S):	16 November 2007
JURISDICTION:	Equity Division Expedition List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	16 November 2007
DECISION:	Hearing expedited
CATCHWORDS:	PROCEDURE – Expedition – convenience of counsel
PARTIES:	John Buckley (first plaintiff) Brenden Lawless (second plaintiff) Daniel O'Connell (third plaintiff) Benjamin May (first defendant) Liquor Administration Board of NSW (second defendant) Licensing Court of NSW (third defendant)
FILE NUMBER(S):	SC 5230/07
COUNSEL:	G Cusak (sol) (plaintiffs) A Hatzis (first defendant)
SOLICITORS:	Grant Cusak Solicitor (plaintiffs) Lands Legal Solicitors (first defendant) Crown Solicitor (second & third defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

BRERETON J

Friday 16 November 2007

5230/07 John Buckley & Ors v Benjamin May & Ors

JUDGMENT (ex tempore)

1 HIS HONOUR: The first defendant John Buckley is the applicant for the conditional removal of an hotelier's licence from premises 88 George Street, Redfern, to premises proposed to be situated at 42-50 Chalmers Street Surrey Hills.

2 On 31 May 2007 the second defendant the Liquor Administration Board approved a Class 1 Gaming Social Impact Application in connection with the proposed removal. On 7 June 2007 the Board approved a Category A Liquor Social Impact Assessment Application in respect of the proposed removal. On 17 September 2007 the Licensing Court had allocated dates for hearing of the application for conditional removal on 5, 6 and 13 December.

3 By summons filed on 26 October 2007 and first returnable on 13 November 2007, the plaintiffs John Buckley, Brendan Lawless and Daniel O’Connell, who are commercial competitors of the first defendant, claim declarations that the Board's approval of the Gaming SIA and of the Liquor SIA are void. The summons also sought an order restraining Mr May from prosecuting the application for conditional removal before the Licensing Court, and an order restraining the Licensing Court from hearing and determining the application until the outcome of these proceedings.

4 The hearing dates in the Licensing Court were subsequently vacated and relisted for 11, 12 and 13 December by consent orders made on 5 November 2007.

5 In other words, prior to the filing of the present application, the impugned Gaming SIA had been approved on 31 May 2007, the impugned Liquor SIA had been approved on 7 June 2007, and the proceedings for conditional removal had been set down for hearing to commence on 5 December 2007.

6 The first defendant is undertaking the fit out of its proposed Chalmers Street premises, on which it has expended in the vicinity of $90,000-$100,000 to date and it is anticipated that the premises will be completed by the end of November or December at a cost of $700,000, with consequential considerable financial hardship if it is unable to proceed with its application for conditional removal in December, as conditional removal is required before it can commence to trade from the proposed premises.

7 At first it seemed quite clear that the proceedings should be expedited, simply on the ground that relief was sought which would be futile unless granted before the hearing appointed to take place in the Licensing Court. After I indicated that expedition would be granted on that ground the plaintiff, which had opposed allocation of the only available hearing date on the basis it was not convenient to its counsel, withdrew the claim for relief for an injunction restraining the Licensing Court from proceeding with the matter, and indicated that, subject to obtaining confirmatory instructions, it will likely offer an undertaking not to apply for an adjournment of the hearing in the Licensing Court. That removes one aspect of the urgency.

8 However, as the defendant points out, at the heart of these proceedings is the validity of the Gaming SIA and the Liquor SIA and that is an issue to be determined by this Court, not the Licensing Court. If the proceedings went ahead in the Licensing Court without resolution of those issues it would leave uncertain the status of the Licensing Court's decision were it to grant a conditional removal. Accordingly, there remains a significant degree of urgency attached to the claim for relief.

9 I have often indicated that in this list I endeavour so far as practicable to accommodate the convenience of counsel, and I am acutely conscious that parties invest time, money and confidence in counsel of their choice. However, sometimes, in cases of urgency, that simply cannot be accomplished. While I do so with reluctance, I do not see how I can, before 11 December, when the hearing in the Licensing Court is to commence, accommodate the convenience of the plaintiffs' counsel in this case. The questions to be resolved are questions of law, and I do not accept that it will not be possible in the space of a week to obtain alternative counsel who can master those questions of law. In this respect, it has to be said that the SIAs now impugned were approved in May and June of this year, and the plaintiff is largely the author of its own misfortune by its late attack upon them.

10 I order that the hearing of the proceedings be expedited. I fix the proceedings for hearing before Windeyer J on 23 November 2007, on that basis the case will take no longer than one day. I make directions in accordance with the document entitled Directions, initialled by me, dated today and placed with the papers.

**********