Commissioner of Police, New South Wales Police Force v Phan
[2018] NSWSC 2036
•09 November 2018
Supreme Court
New South Wales
Medium Neutral Citation: Commissioner of Police, New South Wales Police Force v Phan [2018] NSWSC 2036 Hearing dates: 9 November 2018 Date of orders: 09 November 2018 Decision date: 09 November 2018 Jurisdiction: Common Law Before: Walton J Decision: The Court makes orders in terms of the consent orders filed in Court on 9 November 2018.
Catchwords: RESTRICTED PREMISES – application for rescission of declaration that premises are restricted premises – Restricted Premises Act 1943 (NSW) – whether rescission can be ordered – need for applicant to show satisfaction with requirements of the Act – rescission of declaration made Legislation Cited: Restricted Premises Act 1943 (NSW) Cases Cited: Xu v Commissioner of Police, NSW Police Force [2018] NSWSC 1532 Category: Procedural and other rulings Parties: Commissioner of Police, NSW Police Force (Plaintiff)
Thai Quoc Phan (First Defendant)
Thi Quoc Phan (Second Defendant)Representation: Solicitors:
R Coffey (Plaintiff)
File Number(s): 2018/320897
EX TEMPORE JUDGMENT
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HIS HONOUR: By way of summons filed on 19 October 2018 the Commissioner of Police, NSW Police Force (“the plaintiff”) seeks on order pursuant to s 4(1)(a) of the Restricted Premises Act 1943 (NSW) (“the Act”) rescinding a declaration made on 28 January 2009, in respect of the premises known as "The Hells Angel Clubhouse" located at 53 Broughton Street, Old Guilford, that being the land comprised within Lot 8 of Deposited Plan 14046, but excluding the shed on the western side of the land (“the premises”).
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The first and second defendants have filed submitting appearances and executed consent orders. Those orders were executed by them on 10 October 2018.
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Section 3(1) of the Act provides that upon a senior police officer, showing reasonable grounds that all or any of the conditions set out in sub-para (a)-(d) exist, this Court may declare that Pt 2 of the Act applies to the premises.
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The effect of the declaration made in accordance with that provision is to, inter alia, enliven for the police a power of entry and seizure without warrant. A rescission of a declaration is provided by s 4 of the Act.
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On 28 January 2008 this Court made a declaration in accordance with s 3(1) of the Act in respect of the premises.
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On 19 October 2018, Detective Chief Inspector David Adney, a senior police officer, deposed an affidavit, which identified that at the time the declaration was made the premises was owned and occupied by the Hells Angels Ltd.
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Further, Detective Chief Inspector Adney identified that a title search conducted on 28 September 2018 of the NSW Land Registry Services identified that the first and second defendants were the registered proprietors of the premises.
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On 8 November 2018, Detective Chief Inspector Adney deposed a second affidavit where he details the searches of the NSW Police Force records in respect of the premises. He identified one entry and search of the premise on 10 March 2009 which involved the seizure of 70 bottles and cans of alcohol and 65 drinking vessels from the premises.
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Further, Detective Chief Inspector Adney detailed that a search of the NSW Police Force records indicated that there had been no further entries and searches, or information received, or response to the premises in connection with the conditions specified in s 3(1) of the Act.
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He indicated that he does not suspect that the first and second defendants are connected with the former owners or occupiers of the premises at the time the declaration was made or that the conditions referred to in section 3(1) of the Act obtain or are likely to obtain at the premises.
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The plaintiff submitted that the evidence of the Detective Chief Inspector was sufficient to satisfy s 4(1)(b) of the Act in that a senior police officer had provided proof to the Court that there was no reasonable grounds that any of the conditions referred to in subs (1) of s 3 obtained in relation to the premises. I accept that submission, taking into account my acceptance of the judgment in Xu v Commissioner of Police, NSW Police Force [2018] NSWSC 1532.
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I note in coming to the conclusion, which I do, that the consent orders should be made.
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In the result then I make the consent orders filed in court today in the terms there proposed.
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Decision last updated: 04 March 2019
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