Visalli v Commissioner of Police

[2001] NSWSC 360

CITATION:	Visalli & Anor v Commissioner of Police & Anor [2001] NSWSC 360
FILE NUMBER(S):	SC 11292/01
HEARING DATE(S):	2 May 2001
JUDGMENT DATE:	2 May 2001
PARTIES :	Phillip Visalli The Monopoly Company Pty Ltd Commissioner of Police for NSW Peter John Scanlon LCM
JUDGMENT OF:	Sperling J at 1

LOWER COURT JURISDICTION :	Licensing Court of NSW
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Scanlon LCM

COUNSEL :	Mr Heath for the Plaintiffs Mr Lynch for the first Defendant
SOLICITORS:	Tim Weissel Solicitor for the Plaintiffs Crown Solicitors for the Defendant
CATCHWORDS:	Injunction to restrain operation of closure order of licensed premises
LEGISLATION CITED:	Liquor Act 1982 s104A, s104C
DECISION:	1. The notice of motion filed in court today is dismissed as to paragraph 3; 2. Plaintiff to pay the first Defendant's costs of the notice of motion.

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THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Sperling J

Wednesday 2 May 2001

011292 / 01 Phillip Visalli & Anor v Commissioner of Police & Anor

JUDGMENT

1    HIS HONOUR: By summons filed in this Court today, the plaintiff claims a declaration that an order made by Mr P J Scanlon on 1 May 2001 was made without jurisdiction, a declaration that the order is void and of no effect, and an order quashing and setting aside the order.

2    By notice of motion filed today, the plaintiff seeks an order that the first defendant, being the Commissioner of Police for New South Wales, be restrained from acting on or otherwise enforcing the order referred to in the summons until further order of the Court.

3    The making of the order and the circumstances of its execution appear from the affidavit of the plaintiff, who is the licensee of the Stardust Hotel, that affidavit being sworn on 2 May 2001.

4 On 1 May 2001, Mr P J Scanlon, magistrate, being the second defendant, made an order ostensibly pursuant to s 104A of the Liquor Act 1982 in relation to the Stardust Hotel, by which the plaintiff, as licensee of the hotel was ordered to close the premises as from 3pm on 1 May 2001 until 3pm on 4 May 2001.

5 The order being ostensibly made pursuant to s 104A, it was necessary that the authorising justice be satisfied that a serious breach of the Act had occurred or was likely to occur on the premises, and that the closure of the premises was necessary to prevent or reduce a significant threat or risk to the public interest. The section further provides that the circumstances in which there may be a significant threat or risk to the public interest include circumstances in which there is a risk of serious offences, as defined, being committed on the premises. The section further provides that an order under the section must not require closure of the premises for a period longer than seventy-two hours.

6 Section 104C of the Act provides that the Licensing Court may make an order closing licensed premises for a period of up to six months.

7 Whatever may be the practice, it is apparent that the intent of the scheme is that an order under s 104A will ordinarily be made as a stop-gap provision pending any order under s 104C being made, in effect by way of continuance of the order under s 104A.

8    In the present case, the order was served with the application made for the order, with the exception that a document, referred to in the application and described in the application as an “information sheet”, was placed before the magistrate and not included with the application as served.

9    The order is recorded as having been made at 10.50am and directs closure of the premises from 3pm that day.

10    The information put before the magistrate in the document referred to as the “information sheet” includes information concerning events occurring between 24 and 27 April. There is no reference in the document to any events occurring after that date, notwithstanding that the document itself is dated 1 May 2001.

11    The burden of the argument advanced on behalf of the plaintiff in support of the application for relief is that the magistrate cannot have been satisfied that it was necessary to close the premises in order to prevent or reduce a significant threat or risk to the public interest, including a risk of serious offences, as defined, being committed on the premises.

12    Two arguments were advanced in support of that submission. The first was that, by ordering closure at 3pm in an order made at 10.50am, the magistrate revealed that he could not have been satisfied that closure of the premises was necessary. The second argument is that, because the most recent of the events referred to in the information sheet occurred no later than 27 April, the magistrate cannot have been satisfied of that necessity.

13    I am not persuaded that either argument prevails. An order of this kind is intended to take effect as from the time of serevice. It is reasonable or at least explicable that a magistrate, making such an order, would allow what seemed to him or her to be a reasonable time to elapse between the issue of the order and the police being able to serve it.

14    As to the second argument, having read the document, it seems to me that, notwithstanding that the last specified event was 27 April 2001, the document speaks of a course of conduct and of events of such a nature that it would have been reasonable for the magistrate to conclude that the situation was likely to persist or recur in the immediate future if the premises were not closed.

15 A serious question arises as to whether injunctive relief could or should be granted in relation to an order made under s 104A in an appropriate case. That is because the order takes effect according to its terms on service and there is nothing that the police need to do to maintain its effect for the period specified nor anything that they can do to cause it to cease to have effect once it goes into operation. There appears, therefore, to be no way of preventing the order from having effect by means of a proscriptive or a mandatory injunction directed to the police.

16 It is unnecessary to decide that question for the present purpose, but I mention it for a reason. Section 104A is a provision which, once invoked, may have extremely serious financial consequence. There should be a clear and effective procedure available for the rapid review of such an order and for a court to be in the position of suspending or terminating the operation of such an order at short notice in an appropriate case. It is not apparent that such machinery is presently available.

17    The order I make is as follows. The notice of motion filed in court today is dismissed as to paragraph 3.

18    An application on behalf of the first defendant is made for the costs of the motion. That is opposed. It is opposed on the ground that the plaintiff was not provided with the information sheet to which I have referred at the time of service of the order, and that this was only obtained by the issue of a notice to produce. I do not apprehend, however, that the proceedings would not have been brought if the document had been served with the order. I note, without criticism because none is intended, that entitlement to relief was maintained in argument after the information sheet became available.

19    In these circumstances, costs should follow the event, there being no special reason made out as to why that should not be so. I order the plaintiff to pay the first defendant's costs of the notice of motion.

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Last Modified: 05/04/2001