Commissioner of Police, New South Wales Police Force v Reverse Signage Pty Ltd

[2018] NSWSC 2035

Supreme Court

New South Wales

Medium Neutral Citation:	Commissioner of Police, New South Wales Police Force v Reverse Signage Pty Ltd [2018] NSWSC 2035
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 grants the first prayer of relief in the summons filed 29 October 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) Reverse Signage Pty Ltd (Defendant)
Representation:	Solicitors: R Coffey (Plaintiff)
File Number(s):	2018/331162

EX TEMPORE Judgment

1. HIS HONOUR: By way of summons filed on 29 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 1 June 2009 in respect of the premises at Lot 13 of Strata Plan 2187 on Darlinghurst Road, Potts Point known as Astoria Hotel (“the premises”).

2. The defendant has filed a submitting appearance in the matter. It is submitted, in that respect, that the defendant is aware of the proceedings and that the submitting appearance should be taken as an indication that no opposition is offered by the defendant in relation to the application.

3. 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.

4. The effect of the declaration made in accordance with that provision is to, inter alia, enliven for police the power to enter and a power of entry and seizure without warrant. The declaration remains in force until rescission.

5. Rescission of a declaration is provided by s 4 of the Act.

6. The effect of the summons before the Court today is to seek a rescission of the order made with respect to the premises. Some further background information should be provided on the declaration in question. The declaration in question was made on 1 June 2009, pursuant to s 3 of the Act, with respect to the premises. The Court has before it two affidavits of Detective Chief Inspector David Adney of 23 October and 7 November 2018, respectively.

7. In his first affidavit, the Detective Chief Inspector identifies that at the time the declaration was made, the premises were owned and/or occupied by Astoria Asset Management Ltd and Mr Troy Lunter. At paras 10 and 11 of the first affidavit and paras 4 to 6 of his second affidavit the Detective Chief Inspector deposed that he is of the belief that the ”there is no reasonable ground for suspecting that any of the conditions referred to in subs (1) of s 3 of [the Act] obtain in relation to the premises”. Further, he deposed that he has conducted searches of the New South Wales Police Force databases and confirmed that no offences have been detected at the premises since 2014.

8. At para 11 of his first affidavit the Detective Chief Inspector deposed that he is of the belief that the conditions relied upon by the senior police officer who applied for the declaration in 2009 no longer exists in respect to the premises.

9. As I noted at the outset, the defendant has elected not to take an active role in these proceedings but it is important to acknowledge that the defendant has provided a submitting appearance which has the effect, in my view, as outlined at the commencement of this judgment.

10. In reliance upon the judgment of Davies J in Xu v Commissioner of Police, NSW Police Force [2018] NSWSC 1532 (“Xu”), the plaintiff submitted that the evidence of the Detective Chief Inspector is sufficient to satisfy s 4(1)(b) of the Act, rescinding the declaration made on 1 June 2009, with respect to the premises. I agree with that submission. I also, with respect, agree with his Honour's observations made in Xu but find that there is sufficient material before the Court to make the orders proposed.

11. In the circumstances the Court make orders in terms of para 1 of the relief claimed in the summons filed on 29 October 2018. This matter is thereby concluded.

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Decision last updated: 04 March 2019