Commissioner of Police v Tanos

The Commissioner of Police appealed to the Supreme Court of New South Wales against an ex parte order of a magistrate rescinding a prohibition order made under the *Disorderly Houses Act 1943* (NSW). The prohibition order had been made against premises owned by Mr Tanos, who was the respondent in the appeal. The Commissioner sought to reinstate the prohibition order.

The central legal issue before the Court was whether the magistrate had erred in law by rescinding the prohibition order ex parte, without affording the Commissioner an opportunity to be heard. This involved interpreting the meaning of "allow" and "allowance" within the context of the *Disorderly Houses Act 1943* and its regulations, particularly concerning the owner or occupier's right to be heard.

The Court held that the magistrate had jurisdiction to rescind a prohibition order, but that such rescission could not be made ex parte. The word "allow" in section 4(1) of the Act, which deals with the rescission of prohibition orders, implies that the party affected by the order (in this case, the Commissioner) must be given an opportunity to present their case. The Court reasoned that a judicial or quasi-judicial officer must act in accordance with the principles of natural justice, which include the right to be heard. Therefore, the magistrate's failure to provide the Commissioner with notice and an opportunity to be heard before rescinding the order constituted an error of law.

The appeal was allowed, and the magistrate's order rescinding the prohibition order was set aside. The matter was remitted to the magistrate to be heard on notice to the Commissioner.