De Cue Pty Ltd v City of Sydney Council

De Cue Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against orders made by the primary judge which declared that premises owned by the appellant were a "restricted premises" within the meaning of the *Restricted Premises Act 1943* (NSW) and ordered that the premises be closed for a period of 12 months. The City of Sydney Council (the respondent) sought the orders under section 17 of the Act, alleging that the premises were being used as a brothel in a manner that constituted a public nuisance. The appellant contended that the operation of the brothel was lawful, having been granted development consent, and that no personal fault on the part of the owner or occupier was required for the making of an order under section 17(a) of the Act.

The central legal issue before the Court of Appeal was whether, for the purposes of section 17(a) of the *Restricted Premises Act 1943*, it was necessary to establish personal fault on the part of the owner or occupier of premises that were being used as a brothel, even where the brothel was operating lawfully under a development consent. The appellant argued that the operation of the brothel, being lawful, could not constitute a nuisance in the sense contemplated by the Act, and that the Act required a degree of culpability or fault from the owner or occupier.

The Court of Appeal, comprising Ipp JA, Tobias JA, and McColl JA, dismissed the appeal. The Court held that section 17(a) of the *Restricted Premises Act 1943* did not require proof of personal fault on the part of the owner or occupier. The Court reasoned that the purpose of the Act was to provide a mechanism for dealing with premises that were being used as brothels in a manner that caused a public nuisance, irrespective of whether the brothel's operation was otherwise lawful. The Court found that the evidence established that the operation of the brothel did constitute a public nuisance, and that the lawfulness of the development consent did not preclude the premises from being declared restricted premises under the Act. The appeal was accordingly dismissed with costs.