Sibuse Pty Limited v Shaw

[1988] HCATrans 166

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S57 of 1988

B e t w e e n -

SIBUSE PTY LIMITED

Applicant

and

VINCENT FREDERICK SHAW

Respondent

Application for special leave to

appeal

MASON CJ
BRENNAN J

DEANE J

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TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 AUGUST 1988, AT 3.45 PM:

Copyright in the High Court of Australia

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MR K. MURRAY, QC:  May it please the Court, I appear for the

applicant, Your Honour, with my learned friends,

MR F.P. DONOHOE and MR A. BARRY. (instructed by

Vereker & Partners)

MR K. MASON, QC, Solicitor-General for New South Wales: I appear with my

learned friend, MR D. COWAN, for the respondent.	(instructed by
the Crown Solicitor for New South Wales)

MR MURRAY:  Your Honour, I have had, and I hand Your Honours,

copies of - I have had a summary made of the basis

upon which we seek special leave in the matter and

may I just take Your Honours to that immediately

to see if anything needs to be added to it by way

of explanation and then I will go to the matter.

I did send some to Canberra, Your Honour, and

to the registry here, but I have other copies,

Your Honours.

MASON CJ:  Yes.

If you would hand one up to me, Mr Murray. I do not recollect having seen it.	I can read it
very briefly and hand it back to you.

MR MURRAY:  I do have other copies somewhere, Your Honour. At any rate, Your Honours, the matter· is. ·one that -

just to remind Your Honours:  it was before

Your Honour the learned Chief Justice, and Your Honour's order

appears at the back of the appeal book.

MASON CJ:  Yes, I have absorbed the document, you can have

it back.

MR MURRAY:  Yes, thank you, Your Honour. I have other copies

should it be of any interest or use to the balance

of the Court, Your Honour. The application, Your Honour,

is concerning special leave to appeal against a
decision of the Full Court, which was a majority

decision which effectively, we would submit, overturned

a long line of authority concerning the exercise of

discretion and concerning the administration of the

DISORDERLY HOUSES legislation. His Honour

Mr Justice Priestley formulated his view on certain

views that the case disclosed, in his view, that

the premises, about which there is no

diss~ling, _ were and are being conducted as a brothel

in Canterbury Road, Belmore, a suburb in the inner

western suburbs of Sydney.

His Honour Mr Justice Priestly based His Honour's

decision on it that the evidence disclosed in his

view - the case disclosed before the Court of Appeal -

at least the probability that offences were being

committed; two offences, one of someone living off

the earnings of prostitution and the other one of

someone conducting or being knowingly concerned in the

conduct of a bordello. He found that in those

circumstances there just was - these are my words -

no discretion once the facts, according to his

findings, had been established.

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Those matters, Your Honours, were not the

were not the subject of submissions and were not subject of pleading, were not the subject of evidence,

the subject of the finding below. Indeed, the finding

below was that no offences were being conducted-

were being committed at the premises.

MASON CJ:  But ultimately, did not His Honour go along with

Mr Justice McHugh?

MR MURRAY:  If necessary, Your Honour, as it were, saying at

the end, "I have now seen His Honour Mr Justice McHugh's

judgment and whilst I do not go that far if I am

pressed I will go that far:' To that extent Your Honour
is correct and perhaps it was a conditional or

anticipated embracing of His Honour Mr Justice McHugh's

findings which were based upon a summary of the

history of the legislation, or the legislation as

he saw it. Before I do leave Mr Justice Priestley's judgment, Your Honours, none of the matters to which His Honour Mr Justice Priestley observed - and I have

said this, I just hope it was not missed.- were the

subject of pleading, or of evidence, or submissions

or findings below. Therefore, before I leave

Mr Justice Priestley, the applicant has been met

with an adverse finding on a matter in respect of

which he has had no opportunity really to be heard,

nor was the matter earlier addressed.

This extinguished his opportunity to have the

New South Wales court exercise its discretion in the

views of His Honour Mr Justice Priestley.

Mr Justice McHugh took a different view. His Honour

found that once the finding of the necessary fact,

suspicion, or the existence of the necessary

circumstances - and Your Honours probably would

not need much reminding that the relevant section

of the DISORDERLY HOUSES ACT addresses a number

of behavioural features; the presence of criminals,

This is one of them which was added, Your Honour, drunken behaviour, indecent behaviour and so on.	after a case called FERGUSON V GEE, to which some
brief reference will be made in the course of these submissions.
His Honour Mr Justice McHugh in his judgment, adverse to the applicant, found that once the
element which entitled the court to declare the premises to be disorderly, a disorderly house
as so defined - - -

MASON CJ: What are the conditions precedent?

MR MURRAY:  A condition precedent to the exercise of the

jurisdiction is the finding of the fact

or the reasonable suspicion of the fact, as

Your Honour says. His Honour then said that once

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that has been found there is virtually no discretion.

Now that goes against a line of authorities of

single judges and two judgments, I would respectfully

submit, in the Full Court of New South Wales.

Those reasons, although as Your Honour the Chief Justice

said, they were, if necessary, in anticipation as

it were, embraced by His Honour Mr Justice Priestley.

They are, we would submit, in the face of earlier decisions and that would not be one of the grounds

to which we direct our attention on the special

leave point.

DEANE J:  Mr Murray, if one were to take the view that

for the purposes of section 3(1) of the Act premises

habitually used for the purposes of prostitution

are a disorderly house, where would that lead? In other words, as I understand it,part of the

argument seems to be to·the effect that premises habitually

used for prostitution are not a disorderly house
unless there is something disorderly about the way

in which they are habitually used for prostitution?

MR MURRAY:  That, Your Honour, is a view that is ~upported

by the authorities, and it is a view that we would

seek to submit, Your Honour, is -

DEANE J:  But is that ultimately the crux of it. In other

words, if one takes the view that the phrase

"disorderly house" has a meaning for the purposes

of this Act and that for the purposes of this Act

if premises are a brothel they are a disorderly

house, is that the end of it?

MR MURRAY:	The Act does not say that, Your Honour.
DEANE J:	I know it does not say it, I was just asking you.
MR MURRAY:	No, Your Honour, it depends upon the way the definitional meaning that you give to the words
"disorderly house". It is obvious that such as
in the HEALTH ACT, for example, as in WARD V WILLIAMS,
certain things were found to be by statute to be
a nuisance and here in this statute, Your Honour,
certain behavioural things are found to entitle the technical description, the technical determination
that a place is a "disorderly house". Then the
view is .- the respectful submission is, that that
does not end the matter because the discretion then
means that you say, "Well, really, even though we have found" - as some of the cases find that some
people are playing cards for money or people are resorting to sexual intercourse for money - "should
the matter and that is what the word 'may' means."
we" - and in some cases they have - "further consider almb.st without exception since 1943 when this part
of the legislation came into the statute book and

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since 1968, I think it was, J.967 or 1968, when this
subsection came in.

DEANE J:  Well, then, can I just try and define it a little

bit more. Are the issues then, if one looks at

section 3, is a section 3(1) (e) place a disorderly

house for the purposes of the Act and two, if that

be so is there a discretion after finding that a

place is a disorderly house about whether or not

you declare it to be.

MR MURRAY:  Yes, those are the issues, Your Honour.

His Honour Mr Justice McHugh, in effect, has found

that once you find that the facts which give rise
to the jurisdiction to declare are made out then

you are - in the absence of quite small and seemingly

exceptional circumstances,it follows that the

declaration is made. We would submit, in other

words, that His Honour's finding indicates that

once the fact of its operation is found then there

is no room for the exercise of the discretion.

Furthermore, that in circumstances where the

evidence discloses that at the time the occupier

knew or permitted - I have just forgotten the

exact phrase that His Honour has selected in the
judgment - of it being so used, therefore, under

section 4, the rescission section, he, the occupant,

has no opportunity to lift the declaration. So

it seems clear from His Honour's judgment, if I

have read it correctly, that not only is the
declaration inevitable, without the intervention

of the discretion, and assuming the additional

factors I have that the owner or occupier permitted

the conduct, there is no way that the declaration

can ever be lifted unless you are able to persuade

a police officer to make the application.

DEANE J:  Well, now, are they the only two questions? One

is, is a brothel, as such, a disorderly house?

Two: once a disorderly house is proved,does there

have to automatically be a declaration?

MR MURRAY:  No, Your Honour, there are additional questions

and His Honour Mr Justice Priestley found -
and there are two questions that arise here - that

offences were probably being connnitted, one of which

is the conduct of a, bordello and the other one

of which was living off the earnings of prostitution.

DEANE J:  But if those two questions were answered against

you that would be the end of the matter?

MR MURRAY:  We respectfully submit no, Your Honour. Secondly,

as His Honour Mr Justice McHugh's judgment raises

a question of importance as to whether or not on

appeal, adverse to a litigant, you can find matters

which have not previously been part of the record.

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For example, Your Honour, there was no argument

really addressed other than in discussion during

the hearing as to what were the circumstances in

which someone could be found guilty of the offence

of living off the earnings of prostitution. It

was just mentioned in passing in debate and, indeed,

it was only raised in discussion in the Court of

Appeal as to whether or not the common law offence

of conducting a bordello still existed. My response

to that, Your Honours, as the judgments pick up,

was that I stated that within - I am quoted as

saying "living memory" so I must have used those

words - no one has been prosecuted and no one seems

to have denied that yet, although h~ learned friend

may have the advantages of the statistics of

New South Wales records to tell me whether I am right

or not. But, in any event, Your Honours, it raises

a question which was never debated and which we

would seriously submit is something which is deserving

of resolution. Not only that offence, Your Honours,

but there are a whole raft or plethora or catena of offences of old law which would be in exactly the same situation as that which is conqucting or

being concerned in the conducting of a common bawdy

house, bordello or brothel.

So they are the matters that arise, Your Honours.

There are several of them and we respectfully submit

that singularly and in total they are m~tters which

need to be resolved in New South Wales. They do
not depend on any issue of fact. The facts are

conceded, except the facts upon which His Honour

Mr Justice Priestley would have to rely. It is a

matter current in New South Wales. The Act was

amended and, I think, proclaimed, Your Honours - and I have copies of that for Your Honours - was

assented to on 6 July 1988, a new SUMMARY OFFENCES

ACT.

BRENNAN J:  Mr Murray, is it right to say that once a house

falls within the description of paragraph (e),

the discretion does arise for consideration?

MR MURRAY:	Yes, Your Honour.
BRENNAN J:	So that the only question that can arise here

is what are the kinds of considerations which the

judge should take into account in exercising his

discretion to declare a brothel to be a disorderly

house?

MR MURRAY:	Yes, Your Honour, I cannot disagree. I accept what Your Honour says.
BRENNAN J:	Is that the kind of question which ought to agitate the consideration of the High Court of Australia?

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!:1R MURRAY:  Well, Your Honour, I respectfully submit, yes.

It is not just New South Wales because there are

similar provisions, for example, in the law of

Victoria.

BRENNAN J:	It is a police provision.
!:1R MURRAY:	No, Your Honour, it is far - the consequences

are described as drastic. They require the

premises to be closed, the powers of the police,

anyone going there is liable to instant arrest.

The premises - I think one of the cases, WARD V

WILLIAMS, or may be it is TANOS itself, Your Honours,

the property is extinguished. That is not the exact

phrase. Your Honours, could I hand up TANOS V

THE COMMISSIONER OF POLICE.	That is a case,
Your Honours, in which this -

BRENNAN J: 

Could I just interrupt you once more?

!:1R MURRAY: 

Yes, certainly, Your Honour.

BRENNAN J: 

If one finds that a house does answer .the

description of 3(l)(e) so the question arises
as to how the discretion should be exercised, then

the fact that it is a house which answers that
description is, of course, itself the central

consideration in the exercise of the discretion?

!:1R MURRAY: 

Yes, Your Honour, it must be,and, secondly,

Your Honour, against me, not only does it answer

the description but does the evidence disclose

that that description is likely or will continue

because in the past it has been found relevant,

and His Honour Mr Justice McHugh also adverted to

this, it would be a relevant factor whether the

conduct complaint had ceased.

BRENNAN J:  So the real questions then are what are the

kinds of things that ought to make a judge stay

his hand?

!:1R MURRAY:  Whether a discretion really exists. Mr Justice McHugh,

we respectfully have found, has found no, and if so

what are the type of criteria which should be

adverted to and throughout the cases in which
this matter has been adverted to, Your Honour,
all those matters have received the attention of
the Full Court twice and, indeed, one of the cases
in the Full Court, Your Honour, is one where the

learned primary judge, His Honour Mr Justice Else-Mitchell,

found there was no discretion: "This is a gambling

matter, playing cards for money." The Full Court

said, "Well, there is a discretion" and, indeed,
that case has some interesting comments in it

as to the origins of the legislation and social

change. We are also concerned, Your Honour, let

me hasten to put, with social change. Indeed,

TANOS itself, if I might say, with whatever smile

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is permitted to counsel before the High Court on
a special leave application, contains a lovely

quotation, I think, in the way that social change

applies. Counsel who was in the case may even

remember the judgment being given, Your Honour,

but we do rely upon change and His Honour the

Chief Justice referred to change. One of the

things that Mrs Tanos, who had the Cedars of

Lebanon - at the bottom of 388 - it was, Your Honour, a restaurant. Whilst it is a little before my

active time it was regarded apparently quite

favourably in our city in those days. At the bottom

of page 388 - the reform of the previous disorder

was part of the application before the High Court

including the revocation which really was the

situation in which Mr and Mrs Tanos found themselves

because, Your Honour, may I just add the declarations

can be and have frequently been made ex parte.

His wife set to work to change the clientele

and reform the restaurant. The old customers

were insistent on wine with their fqod, a

fact of which the Tanos couple say·they were

unaware when they bought the business, but by
means of Lebanese coffee, carefully brewed tea

and a few soft drinks,ooupled with the

refurnishing of the room and the laying

of some strips of carpet, the patronage of

a much more desirable class of customer was

obtained, a class which would not demand wine

with their food.

MASON CJ: 

Well, I gather with that you have said all you want to say about this?

MR MURRAY: 

On the question of wine with food, Your Honour, I have said all I want to say. I refer Your Honours

to WARD V WILLIAMS, a case concerning nuisance.

I might say, Your Honours, before I leave it,

the reason why the common law offence of being

concerned in the operation of a bordello is

associated with nuisance and immorality and I think
the last case I could find in New South Wales

was about the turn of the century and the last

definitional case in England seems to make it

clear that the indictment depends upon matters

associated with conduct, disorderly conduct, immoral

disorderly conduct, not affronts to public order.

So we say it has got to have an element of

disorder.	The issue that Mr Justice Priestley
raises,	Your Honours, is whether or not that

offence continues and I rely, of course, upon

every word that His Honour the Chief Justice says

in His Honour's judgment.

MASON CJ: 

Yes. Well, I think you have made it plain to us

what could be said in support of the application.

Yes, Mr Solicitor.

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MR MASON:  There has, on my instructions, been a prosecution

for keeping a bordello in which someone who perhaps

ought to have known the situation, namely, a solicitor,

pleaded guilty for that offence within the last six

months. Your Honours, the relevant facts in this

case are that there was - it was admitted by the

applicant that 3(l)(e) was satisfied in fact. It

was clear the applicant knew of it and intended to

continue the use of the premises for the use of

prostitution. There were no other relevant factors
present and in those circumstances it would have been

improper, in our submission, to have declined to

exercise the discretion.	Mr Justice McHugh was
clearly correct.

In our submission, it is quite clear that there was no need to find an additional factor of disorder

and the attempts of the Chief Justice to find, in section 3(1), such a requirement were not correct.

DEANE J:  That is the first question, is it not, and that

is whether 3(l)(e) is a condition a jurisdiction

or whether 3 ( 1) ( e) premises are a disorder~y: house?

MR MASON: Well, we would say that they become a disorderly

house when they are declare~ tha~looking through

3(1), the factual matters have to be suspected. If

they are -

DEANE J: Well, that begs the question, does it not? I mean,

if a judge has got power to declare something to be

a disorderly house you do not say that it is only
a disorderly house when he declares it. It is a

declared disorderly house when he declares it.

MR MASON:	I take Your Honour's point about the word "declare" but the structure - - -
DEANE J:	It was in that sense that I was putting rrw q~stion though

to you and that is that the first question is

if you have premises that are habitually used for

house for the purposes of section 3 or do you need the purpose of prostitution, are they a disorderly something more for them to be a disorderly house?

MR MASON:  Well, you certainly need nothing more but I would

not accept that they necessarily have to be regarded

as a disorderly house because there is the judicial

discretion vested in the court by the section and,

in my submission, the discretion is to be seen as

giving power to decide that they shall be treated

as a disorderly house with the effect that the Act

gives.

DEANE J:  Well, in other words, you would concede it is open

to a judge to say, "I am satisfied these premises

are habitually used for the purpose of prostitution

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but I do not think they are a disorderly house",

as distinct from saying, "I am satisfied these

premises are a disorderly house but I do not propose

to declare them because of other considerations

going to discretion."

MR MASON:  I would say that the way Mr Justice McHugh put

it at 73 is the correct way, that if the facts are

found and found not just as a suspicion but as a

matter of fact, and absent other factors such as

that they had been discontinued, then the Court

should make the declaration but if they have been

discontinued - - -

DEANE J:  I must be being obscure. All I am asking you is

do you say for the purposes of this Act the fact

that premises are a brothel suffices to make them

a disorderly house or do you need something more?

MR MASON: No, you need nothing more.

DEANE J: Well, then, you do say that?

MR MASON:	Yes, I am sorry.
DEANE J:	Well, Mr Murray says the contrary and that is
that that is not enough.
MR MASON:	Yes. And certainly in this case those facts

were established and the question then came as to

the extent of the judicial discretion which is

accepted and was accepted by the majority judgments

below as still being available. The question is

whether this case is an appropriate vehicle to

determine what are the factors that pertain to the

existence of that discretion when it is quite clear,

in our submission, that there was just nothing that

could be said in the applicant's favour against the

exercise of the discretion, in fact - - -

DEANE J: Well, what sort of thing would you concede could be

said if it is proved that premises are habitually

used for the purposes of prostitution?

MR MASON: Well, as Mr Justice McHugh said at page 73, if

the use had been discontinued - - -

DEANE J:  But what I said to you was if it is proved that

the premises are habitually used?

MR MASON:	Are still being habitually used, yes.
DEANE J:	That is what the section says.
MR MASON:	Well, Mr Justice McHugh suggested that many leading

hotels might satisfy that description and yet if

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there was evidence that reasonable steps had been

taken to prevent it or that the owner did not know,

reasonably did not know that this was happening,

that might be a circumstance which could lead to

a favourable exercise of the discretion. In this case the owner said, "We know and we intend it to

continue. We would like the court, in effect,

to license that continuation because we are keeping a nice clean brothel." In the course of advancing

that evidence the applicant advanced the evidence

of these two criminal offences. We deny that there

is any issue of natural justice and submit that the

suggestion that there was some point whisked out of

the hat is news to us, it was not taken in the

application affidavit or the documents filed here.

It was conceded, as Mr Justice Priestley noted,

that the common law misdemeanour of keeping a brothel

is still a misdemeanour and the evidence showed,

in my submission, quite clearly, as the c~urt found,

that both - ThO off enc es were being committed, that

common law misdemeanour and the offence ..q,f knowingly

living off the earnings of prostitution.

:MASON CJ:  Now, these orders used to be made ex parte. What

is the procedure now?

MR :MASON:  They are made on notice and ever since TANOS' case

that has been the case, on my understanding,

Your Honour.

:MASON CJ:  What purpose does section 4, which provides for

rescission of declarations, now serve?

MR :MASON:	It would provide, in 4(a), a ground of the owner obtaining the reversal of the order by
proof that he is not at any time allowed any of
the conditions.  Now, that goes further
than.negating the fact which had to be proved to make the declaration in the first place. The
factors in section 3(1), the owner to have it inspector of police may rely on just one of the
reversed or occupy must do that and, of course, section 4 is available to a new owner to come
in and say that the Act has been cleaned up.
My learned friend said that one of the drastic
effects of the declaration was anybody was liable
to arrest. That is not a correct interpretation of section 7 because the liability is unless that
person proves that he was there for a lawful purpose.

Your Honours, it is difficult to see the case

I have to meet at this stage because my learned friend has, in my submission, really advanced no
factor in his client's favour that might suggest

that the discretion which he concedes to reside in

the court might not have been exercised against his

client.

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MASON CJ:  Yes. The case against you for special leave is

that the interpretation of section 3 is important

but differing views have been expressed in the
courts below and that there seems to be some
uncertainty as to the existence of a discretion

to refuse an order and as to the scope of such

a discretion if it does exist?

MR MASON:  Yes. Well, we say it was a clear majority below,

that the preferred position - - -

MASON CJ:  Well, a clear majority in one sense, if you just

look at the members of the Court of Appeal, but

if you look at the four judges who entertained it

then you do get a different division?

MR MASON:  Yes. Well, we submit that the court that is at

the local peak of the New South Wales judicial

system has resolved any issue. The dissenting

which, in my submission, would not find any favour judgment of the Chief Justice fixes on factors

with the court having regard to the int~rpretation
of section 3, the need to find this element of

disorder, or the question about whether prostitution

had become decriminalized according to the statute.

So we would say that there is clarity of principle

in the majority judgments about which, no doubt, has been thrown and that this case is certainly
not an appropriate one in which to allow those

doubts to be ventilated because even ·

on the harsher test prescribed by the Chief Justice,

the facts were, in our submission, quite clearly

satisfied. If one looks at page 18 of the application

book in the short passage - - -

(Continued on page 13)

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MASON CJ:  The Chief Justice did not take that view,

did he?	He took a different view in relation to
the facts?

MR MASON:  Yes, but the Chief Justice, bearing in mind

that he was reviewing a discretionary judgment,

really said that he, in effect,would exercise

the discretion differently than Mr Justice Grove
had done and, in my submission, that is not

proper way to review a discretionary judgment.

His Honour did not say, as he was bound to in law,

the facts found by Mr Justice Grove were incapable
of leading to .a declaration being made on the
standard view of" disorderly" that His Honour took .

The facts clearly were that there had been two drug-related deaths, a robbery, bomb hoax and

the other natters referred to on page 18. In our

submission they were clearly capable of satisfying

any description of disorderliness if that was

needed in addition to satisfying the clear text of

section 3.

So, Your Honours, on the basis that we are

looking at whether there is any real dispute, the

judgment below, in my submission, is clear. The

facts are not appropriate for this to be any vehicle

for a re-examination and clearly what this Court,

or what any court, is being invited to do if the

declaration in this case is to be put at issue, is

to enter into a licensing system for prostitution

in New South Wales and that is not an appropriate

thing for this, or any court, to be drawn into.

MASON CJ: Thank you, Mr Solicitor. Yes, Mr Murray?

MR MURRAY:  Your Honour, the Chief Justice found at

page 27 of the book that Mr Justice Grove had
proceeded - that is an illustration of his findings -

on a wrong principle and once that, of course, had

been found, then it was within the prerogative

and the duty of the Court of Appeal to make its

own determination of the matter. And indeed,

Their Honours were unanimous and I think perhaps the remarks that His Honour the President made

when the application for a stay was made, one

could glean from it that His Honour also was of

the view that His Honour Mr Justice Grove had been

wrong.

Your Honours, perhaps to answer some of the things my learned friend has put: it is only if you

say that there is only one determination and that

is that the words, "disorderly house" are both

enabling in the jurisdictional sense and definitional

and that it follows automatically from the finding

that all other elements are extinguished and

therefore there is no discretion. Now, that is as

is clear, Your Honour, and I fail perhaps to emphasize

13

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that there are two decisions of the Full Court of

New South Wales to the contrary, and indeed,

FERGUSSON V GEE is one, Your Honour. Perhaps I

could hand Your Honours copies of that.

SLOCOMBE RE KOWNARIS, Your Honour, is another one

in which unanimously, I would respectfully submit -

Your Honour sees the judges involved in those matters and they decide that further consideration is required

and trat the point that Your Honour Mr Justice Deane

put to me, Your Honour, is at least arguable on the

basis of those two cases and those two cases, Your

Honour, are at least, I would respectfully submit,

strongly arguable not to support His Honour

Mr Justice McHugh.

The other matter, Your Honour, is that although

it is true, as I am reminded - in fact, I learnt

that myself recently, someone has in fact admitted

the offence, Your Honour. I would respectfully

submit that it is a matter that does warrant

determination and I do not say just specifically

this type of offence but, generally speaking, what

status any of those old common law offences .have,

if Your Honour pleases. We would respectfully

submit that what could be said once the judge had

found the facts to be continuing would be that there

were no offences of the law; no breaches of the law,

as was found below here. We would respectfully

submit that the element of disorder appears from

all the cases, the old cases and the modern cases,

Your Honour, as being a criterion and indeed, Your Honour,

in TANOS itself there is reference made to the

various types of conduct which are the subject of

the legislation. Far from it being an effective

submission, Your Honour, that the Court is required

to enter into some approval or licensing, the

Court is re::iuired perhaps to uphold, or to re-enact

moribund common law misdemeanours. It is required to

join in, in a way that has drastic consequences

which, again, quoting	WARD V WILLIAMS, are not
necessarily by any means the best vehicle for the

policing of prostitution in this community. The

legislature has re-examined this area of' the law

several times in the last 10 years and did so quite

recently, and indeed, Your Honour, in the second

reading speech some remarks were made by the that no offence is committed by the parties to

sexual intercourse for money. We respectfully submit

that if Your Honour were to accept those submissions

as being able to said where there is evidence that

this continuing set of circumstance proceeds, it

is not, I would respectfully submit, anything against

the public order. It is matters which, Your Honour,

in today's climate must be regarded as being far

different to what they were 100 years ago.

Your Honour, I would like to add to the matter, for Your Honours to consider - I have the second reading

speech, if I could hand Your Honours that.

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MASON CJ: Is this relevant to the interpretation of this

statute? If it is not, why should we look at it?

MR MURRAY:  Your Honour, in the new legislation the offence

of living off the earnings of prostitution is

re-enacted. The PROSTITUTION ACT is repealed.

Those are matters Your Honour, which go to the

question of what offences, if any, are conducted

in a place which is accepted to be run as a brothel.

The new Act, Your Honour, continues the obligation

of an occupier for whatever other legal obligations

he has concerning the running of a brothel. It does not

say what they are. Without wishing to pause, Your Honour,

to flag them, there are quite a number in the criminal

law other than just running such premises and, in my

respectful submission, Your Honour, the stage at

which the matter has been left, no one really knows

just what are the criteria by which tli.is legislation

and this provision can be administered.

It is, Your Honour, not denied that for whatever

good or bad reason there are many, many, if not hundreds,

of these premises in the city of Sydney itself. Figures

have been given in various ones of the cases:·

Mr Justice Enderby, in his judgment mentions some quantities of them.

Your Honour, just answering one of my learned

friend's suggestions about section 7, Mr Justice McHugh

says it is not true that the people found being in the

building have a lawful purpose because they are

aiding and abetting the offences. Mr Justice Priestley

would say, no doubt, that they are aiding and abetting

the offence of keeping a common bordello, or of

someone living off the earnings of prostitution.

Your Honour, those matters have not been properly

addressed and we respectfully suggest that,as

Mr Justice McHugh concedes, section 4 itself is in

danger. If it is real that the Regent Hotel in Sydney

is possibly the place to which persons resort for

sexual intercourse for money, and if you say therefore

that that would ground an application by the appropriate

police superintendent or inspector that it should be

declared a disorderly house, we are in a situation

which is, I respectfully submit, one that ought to

be recognized as being on the border of being

ludicrous, but His Honour does say that it would be

a matter for the proprietors of the Regent to come

along and ask for the exercise of the supreme court's

discretion because if the Regent is declared, it

has only got to be evidence that someone had some

idea that it was going on. And, I suppose - I do not

want to push this point too hard, one ought take
notice of the fact that it does happen - if the
occupiers of proprietors were aware, then the
premises can never be freed of the declaration unless

you can persuade,under section 4, a police officer to

free it. Now, whatever, Your Honour,are the appropriate

steps to be taken by the legislation, I would respectfully

submit, it is not for the courts to say that brothels

are illegal and that is the effect of this judgment

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because if the definition that is necessarily involved

in His Honour Mr Justice McHugh's argument, that if

it is found to be conducted as a brothel, it is

disorderly and therefore there is no discretion. Now,

that effectively means that however many there are -

hundreds in the city of Sydney - can be declared and it

is against which there is no defence.

The legislature has had the opportunity many

times in the last 10 years, Your Honour, including
quite recently to make its position clear. It could

have said what it wanted and it has left the Act as it was in 1943, the first time the matter was

considered. Admittedly, they have been a gambling

premises or liquor offence premises, but they are

always behavioural matters, Your Honour. At this

time on this application it is not appropriate for me

to go to the history of this legislation, Your Honour,

but, I would respectfully submit, it is at least

arguable that the genesis of firstly the misdemeanour,

and the gensis of this type of legislation,

Your Honour, has been deemed abuse, deemed breach of

the public law in areas of nuisance and morafity which

may, in the eyes of the High Court, have limited

application in today's climate.

Your Honour, for these reasons, I would respectfully

submit that far from nothing be said by us, we say

that the finding below is in our favour as far as

the answer to the question as what could be said to

prevent the declaration. It is not illegal - at

least, it was not satisfactorily found to be

illegal, the conduct of the premises; nor do we say

was there any evidence that offences against the

law were continuing which would offend the feelings

of a· court such as this, so as to say, "We cannot

approve that", because, Your Honour, in each of

the cases below, be they liquor offences, be they

gambling offences, even though those things were

of themselves unlawful and illegal, criminally

illegal, the Court has gone on to say, "Well, now

having found that, will we under the

DISORDERLY HOUSES ACT find whether or not the

discretion should be exercised in favour?" It is

not approval, unlawful behaviour, that this Court

is being asked to do; it is saying that the attack

upon the property - the attack upon the proprietary

rights of the owners and occupiers is not an

appropriate way to administer this social phenomenon.

And we respectfully submit, Your Honour, in those

circumstances, it is a matter which the Court should
consider by giving us special leave.

MASON CJ: Thank you, Mr Murray. The Court is of opinion

that there is no sufficient reason to doubt the

correctness of the decision of the Court of Appeal

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Accordingly, the application for special leave is refused.

MR MASON:  Your Honours, I ask for costs and also for

the dissolution of the order recorded on page 78

of the application book.

MASON CJ:  Do you need an order for dissolution?

MR MASON: Well, it says, "until further ordern and

it is a question of whether this order Your Honour has

just pronounced is a further order. For more

abundant caution, I would ask for it to be formally

dissolved.

MASON-CJ:	You cannot resist this, Mr Murray?
MR MURRAY:	I cannot resist that, Your Honour.
MASON CJ:	The application for special leave is refused

with costs and the Court dissolves the order which

I made on May 27 1988.

MR MURRAY:  May it please the Court.

AT 4.31 PM THE MATTER ADJOURNED SINE DIE

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