Director-General Department of Trade & Investment Regional Infrastructure and Services v Lewis

(2012) 301 ALR 420; [2012] NSWCA 436

NSW Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Procedural fairness
3. › Content of duty
4. › Decision affecting multiple parties
5. › Whether obligation requires disclosure of source materials underlying report where report but not source materials before decision-maker
6. › Whether content of duty reduced where decision of general application affecting large class
7. › Liquor Act 2007 (NSW), ss 136B, 136D
1. Administrative Law
2. › Procedural fairness
3. › Disclosure obligations
4. › Adverse information credible relevant and significant
5. › Whether decision-maker obliged to disclose material not in actual knowledge and not proposed to be considered
6. › Gist requirement
1. Administrative Law
2. › Judicial review
3. › Injunctive relief
4. › Quia timet relief
5. › Whether injunction available to restrain threatened breach of procedural fairness before decision made
6. › Standard of proof for quia timet relief in administrative law
1. Administrative Law
2. › Statutory interpretation
3. › Liquor regulation
4. › Precinct liquor accords
5. › Power to vary terms of accord
6. › Whether power found in s 136B(1)(c) or s 136D
7. › Whether accord measures may be tailored to exempt individual licensees
8. › Liquor Act 2007 (NSW), Part 8, Div 2

Quick Take

A decision-maker exercising a power of general application affecting multiple parties satisfies procedural fairness by disclosing the report on which the decision will be based and inviting submissions, without being required to disclose underlying source materials that will not be before the decision-maker. The content of the procedural fairness obligation is reduced where the decision affects a large class and the statutory framework lacks express procedural fairness provisions. Quia timet injunctive relief to restrain a threatened breach of procedural fairness requires a strong probability that the decision-maker will act in breach, not merely a risk of breach. Smith v Director of Liquor and Gaming [2009] NSWSC 837 should not be followed on the test for procedural fairness disclosure.