Xu v Commissioner of Police, NSW Police Force

In these proceedings, the plaintiffs seek an order pursuant to s. 4(1)(a) of the Restricted Premises Act 1943 (NSW) seeking that declarations made by Schmidt J on 24 November 2017 under s. 3(1) of the Act be rescinded: Commissioner of Police, NSW Police Force v WX Fortune Pty Limited [2017] NSWSC 1632.

The proceedings were listed before me on Monday, 8 October, where a consent order was handed up providing for the rescission of the declaration made by Schmidt J.

I raised with the parties at that time whether, by reason of the terms of s. 4 of the Act, the order of Schmidt J could be rescinded simply by a consent order between the parties. The matter was adjourned to today for the parties to give consideration to that matter. In the meantime, I have helpfully been provided with further material in support of the order which is now sought. .

Section 4 of the Act relevantly provides:

Two things cause me to think that it is not sufficient that parties agree by consent that an order should be rescinded. The first is that the orders were made by a judge of this Court after a hearing, albeit, an ex parte hearing, where evidence was considered and it was found that s. 3 of the Act was satisfied for the making of the declaration.

The second matter is the wording of s. 4(1) itself. That section provides for an application, either by the owner, or occupier of the premises, alternatively, by a senior police officer. Certain matters must be shown, whichever application is made, before a declaration may be rescinded.

Further, the chapeau to subsection (1) of the Act provides that the declaration may be rescinded, "subject to such terms as the Court thinks fit". That does not, of course, suggest that in every case when a declaration is rescinded terms need to be imposed upon that rescission, but it points to the fact that an independent exercise of the court's discretion is required before a rescission order can be made.

This is an application as I have said under s. 4(1)(a), and proof must be shown that, here, the occupier has not, at any time, allowed any of the conditions referred to in subsection (1) of s. 3 to obtain in relation to such premises. The declaration made by Schmidt J appears from her Honour’s reasons to have been made on the basis of paragraphs (a) and (b) subsection 3(1), although, in particular, paragraph (b) was relied upon because it was ascertained that drugs appeared to have been unlawfully sold, or supplied from the premises.

The affidavit in support of the summons from the first plaintiff, who is the director of the second plaintiff, the occupier, demonstrates to my satisfaction that she did not allow the conditions which were referred to by Schmidt J to obtain at the premises. Indeed, that evidence discloses that she had made every effort with her managers, who looked after the premises on a day to day basis, before the inspections and searches referred to in Schmidt J’s judgment, to ensure that drugs would not be brought to, used on, or sold from the premises. The affidavit discloses that after she was made aware of the police presence at the premises, she took further steps to that end, which also involved the dismissal of one of the management of the premises.

In those circumstances, I am satisfied that the requirements of s. 4(1)(a) of the Act have been satisfied.

There is, in addition, an affidavit from Detective Senior Constable Mantao Chan, sworn 10 October 2018. He details in that affidavit a number of random inspections of the premises, which have been conducted there since the orders were made by Schmidt J on 24 November 2017. Those random inspections have taken place between December 2017 and August 2018. No positive findings of drugs, or drug paraphernalia were found during the course of those inspections. For that reason and, also, having regard to the affidavit of the first plaintiff, I am satisfied that the order which has been sought and agreed between the parties should be made without any terms being imposed on the declaration of rescission.

Accordingly, I make the following orders: