NSW Police Commissioner Mick Fuller may have undermined his own effort to stop a Black Lives Matters rally in Sydney by speaking to media about the issue before consulting the rally organiser.
The demonstration, calling for justice for David Dungay Jr, is planned for next Tuesday despite NSW coronavirus health orders banning large groups of people.
Lawyers for Mr Fuller went to the NSW Supreme Court on Thursday afternoon to de-authorise the public assembly, allowing police to move on or arrest those blocking streets and fine those gathering in large groups.
A second wave of coronavirus has hit Victoria and clusters of cases have grown in the 20 days since NSW Police's last attempt to stop a BLM rally.
But rally organiser Paddy Gibson argues the court can't legally hear the case.
By law, police must take "into consideration any matters put by the organiser" at a scheduled conference before filing a case with the court, Justice Mark Ierace was told.
That conference between Mr Gibson and local police on Monday morning came hours after Mr Fuller went on 2GB.
"I've spoken to the assistant commissioner in charge of the city, Mick Willing, and he's been instructed to take the matter to the Supreme Court like we have with previous matters," Mr Fuller told 2GB.
"The commissioner has thwarted the statutory process," said Mr Gibson's lawyer Felicity Graham.
Justice Ierace said he was "very concerned" by the interview.
"I'd have thought ... one might say 'consideration' is to be a genuine consideration, bona fide if you like," he said.
"If it is to be the case that the commissioner said publicly he'd given instructions before the meeting, (then) on its face, that would be very concerning."
But NSW Police argued Mr Fuller had delegated responsibility to Assistant Commissioner Stacey Maloney, who made the decision to go to court.
"At that time (of the interview), the commissioner wasn't exercising a function under the Act in any event," said Michael Spartalis, for NSW Police.
The case was adjourned to Friday morning, when Ms Maloney is expected to give evidence.
NSW Health's Jeremy McAnulty is also expected to give evidence in support of NSW Police's case.
Health Minister Brad Hazzard earlier told reporters he was supportive of Black Lives Matter but was "100 per cent opposed" to any demonstrations that involve people freely intermingling.
"Let's get this COVID-19 under control right across our country and then it can be time to express our democratic rights," he said on Thursday.
The rally would call for the criminal prosecution of five prison officers who restrained David Dungay before he died in a Sydney jail in 2015.
Mr Gibson, in an affidavit filed to the court, said he'd noticed a "drastic turnaround" in public support for the Dungay family since the death of US man George Floyd and the re-emergence of the BLM movement this year.
Before passing out and dying, Mr Dungay repeatedly screamed "I can't breathe", to which one officer replied: "You're talking, you can breathe."
A coroner in 2019 found the prone restraint was a contributory factor to the 26-year-old Dunghutti man's death but cleared the five prison officers of malicious intent.
If allowed to proceed, demonstrators on Tuesday would have to wear masks, socially distance and use hand sanitiser, Mr Gibson said.