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Davies v Smith (No 2)

Davies v Smith (No 2)

Case [2019] NSWSC 1291 26 September 2019

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Declaration

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Supreme Court

New South Wales

Medium Neutral Citation: Davies v Smith (No 2) [2019] NSWSC 1291
Hearing dates: 29 July 2019, 24 September 2019
Decision date: 26 September 2019
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Declare under s 3(1) of the Restricted Premises Act 1943 (NSW) (the Act) that premises identified by NSW Land Registry Services as Lot 57 in Deposited Plan 244895, which is commonly known as 12 Nottingham Avenue, Castle Hill in the State of New South Wales, are premises to which Part 2 of the Act applies.

(2) Stay the effect of the declaration for a period of 120 days.
(3) Make no order as to costs.
Catchwords: RESTRICTED PREMISES ACT 1943 – application for declaration – suspicion on reasonable grounds – effect of reputed criminals living on premises – matters germane to exercise of discretion – hardship to defendant irrelevant – declaration made
Legislation Cited: Criminal Procedure Act 1986 (NSW), ss 3, 5, 6
Disorderly Houses (Commercial Supply of Prohibited Drugs) Bill 2002 (NSW)
Interpretation Act 1987 (NSW), ss 9, 34
Restricted Premises Act 1943 (NSW), ss 2, 3, 4, 6, 8
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited: Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37
Davies v Smith [2019] NSWSC 700
Electrolux Home Products Pty Limited v Australian Workers’ Union (2004) 221 CLR 309; [2004] HCA 40
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40
Sibuse Pty Ltd v Shaw (1988) 13 NSWLR 98
The Commissioner of Police v Tanos (1958) 98 CLR 383; [1958] HCA 6
Texts Cited: New South Wales Legislative Council, Parliamentary Debates (Hansard), 20 November 2002
Young PW, Declaratory Orders (2nd ed, 1984, Butterworths)
Category: Principal judgment
Parties: Detective Sergeant Evan Davies (Plaintiff)
Malcolm Gordon Smith (Defendant)
Representation:
Counsel:
F Rogers (Plaintiff)
P Godkin (Defendant)
Solicitors:
Makinson d’Apice Lawyers (Plaintiff)
Havas Legal (Defendant)

File Number(s): 2018/148521

Judgment

Introduction

By summons filed on 11 May 2018, Detective Sergeant Evan Davies (the plaintiff) sought a declaration pursuant to s 3 of the Restricted Premises Act 1943 (NSW) (the Act) in respect of premises of which Malcolm Smith (the defendant) is the registered proprietor and in which he presently lives with two of his grandsons and, from time to time, two of his sons. On 3 June 2019, the evidence in the matter was adduced and submissions made.
On 12 June 2019 I published reasons for my decision that there were grounds to exercise the discretion under s 3 of the Act by reason of the matters in s 3(1)(b), (c) and (d): Davies v Smith [2019] NSWSC 700. Those reasons ought be read with the reasons that follow.
In order to give context to the submissions on outstanding issues it is necessary to outline in greater detail the conduct of the proceedings to date.
Ms Rogers appeared on behalf of the plaintiff throughout. Mr Godkin appeared on behalf of the defendant on 29 July…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Davies v Smith (No 2)

Details

AGLC: Davies v Smith (No 2) [2019] NSWSC 1291
Case: [2019] NSWSC 1291
Decision Date: 26 September 2019

CaseChat Overview and Summary

In Davies v Smith (No 2), the plaintiff sought a declaration from the Supreme Court of Queensland that premises located in Brisbane were restricted under the Restricted Premises Act 1943. The defendant, Smith, opposed the application, arguing that the court should not consider the presence of reputed criminals on the premises and that the court should take into account the hardship to the defendant and his family. The dispute centred on whether the presence of reputed criminals on the premises was relevant to the court's exercise of discretion and whether hardship to the defendant was a consideration that the court should take into account.

The legal issues before the court were whether the presence of reputed criminals on the premises was relevant to the exercise of the court's discretion under the Act, and whether hardship to the defendant was a consideration that the court should take into account. The court held that the presence of reputed criminals on the premises was relevant to the exercise of the court's discretion and that the court was not required to consider the hardship to the defendant. The court found that the defendant's argument that the presence of reputed criminals on the premises was irrelevant was misplaced, as the court was entitled to take into account all matters that were germane to the exercise of its discretion. The court also found that the defendant's argument that the court should take into account the hardship to the defendant was misconceived, as the court was not required to consider the hardship to the defendant in making its decision.

The court made a declaration that the premises were restricted under the Act, and ordered that the defendant vacate the premises within a specified period. The court held that the presence of reputed criminals on the premises was a relevant consideration in exercising its discretion, and that the court was not required to consider the hardship to the defendant. The court found that the plaintiff had established that there were reputed criminals living on the premises, and that the defendant had failed to establish that the presence of these individuals was not relevant to the exercise of the court's discretion. The court also found that the defendant had failed to establish that the court should take into account the hardship to the defendant in making its decision.

Orders