Sibuse Pty Limited v Shaw

This matter concerned an application for special leave to appeal to the High Court of Australia. The applicant, Sibuse Pty Limited, sought leave to appeal against a majority decision of the Full Court of the Supreme Court of New South Wales. The dispute revolved around the application of the *Disorderly Houses Act* and the exercise of discretion by the court in relation to premises alleged to be conducted as a brothel.

The central legal issue before the High Court was whether the Full Court of New South Wales had erred in its majority decision, which Sibuse Pty Limited submitted effectively overturned a long line of authority concerning the exercise of discretion under the *Disorderly Houses Act*. Specifically, the applicant argued that the findings made by Justice Priestley, which formed part of the majority decision, were based on matters that were not pleaded, evidenced, or submitted upon in the proceedings below, and therefore Sibuse Pty Limited had not had a proper opportunity to be heard on those issues.

Justice Priestley, in his judgment, had found that the premises were being conducted as a brothel and that there was at least a probability that offences under the Act were being committed, including living off the earnings of prostitution and being knowingly concerned in the conduct of a brothel. He concluded that in these circumstances, there was no discretion to be exercised. However, the applicant contended that these findings were made without proper notice or opportunity to respond, and that the lower court's finding had been that no offences were being committed. The applicant argued that Justice Priestley's decision, to the extent it relied on these unaddressed matters, extinguished the opportunity for the New South Wales court to exercise its discretion.