Supreme Court New South Wales Medium Neutral Citation: Garren Anthony Hamilton v Forte-Senses Hotels Pty Limited and Ors [2016] NSWSC 1004 Hearing dates: 20 July 2016 Date of orders: 20 July 2016 Decision date: 20 July 2016 Jurisdiction: Common Law Before: Bellew J Decision: (1) I declare, pursuant to the provisions of s 3 (1) of the Restricted Premises Act 1943 that the premises described below, namely the land comprising Deposited Plan 1/1803082, and the building thereupon, being 44 Darlinghurst Road, Potts Point but not including 44A and 44B Darlinghurst Road, Potts Point, they being separate commercial premises operating at street level, are premises to which Part 2 of the Restricted Premises Act 1943 applies. (2) I note the terms of s 4 of the Restricted Premises Act 1943 which provides as follows: 4 Rescission of declaration (1) Any such declaration may be rescinded by the appropriate Court subject to such terms as the Court thinks fit, on application being made to it: (a) by the owner or occupier of the premises, the subject of the declaration, on proof that the owner or occupier has not at any time allowed any of the conditions referred to in subsection (1) of section 3 to obtain in relation to such premises, or (b) by a senior police officer on proof that there is no reasonable ground for suspecting that any of the conditions referred to in subsection (1) of section 3 obtain in relation to such premises. (2) Where an application under this section is made by the owner or occupier of the premises notice in writing of intention to make the same shall be served on a senior police officer two days at least before the hearing of such application. (3) I make no order as to costs. Catchwords: RESTRICTED PREMISES – Declaration – No point of principle Legislation Cited: Environmental Planning and Assessment Act 1979 Restricted Premises Act 1943 (NSW) Category: Principal judgment Parties: Garren Anthony Hamilton – Plaintiff Forte-Senses Hotels Pty Limited – First defendant Monash Entertainment Pty Limited – Second defendant Allena Enterprises Pty Limited – Third defendant Representation: Counsel: Mr P Saidi – Plaintiff Mr F F F Salama – First defendant Solicitors: Makinson d'Apice Lawyers – Plaintiff Sparke Helmore Lawyers – First defendant Submitting appearances for second and third defendants File Number(s): 2016/214874 Publication restriction: Nil Judgment – EX TEMPORE (REVISED) 1. By a summons dated 15 July 2016 the plaintiff seeks orders in the following terms: 1. An order pursuant to Uniform Civil Procedure Rule 1.26, and Schedule 10, that this Court deal with an application under s 3(1) of the Restricted Premises Act 1943 New South Wales "(the Act)" notwithstanding that this summons has not been served; 2. A declaration pursuant to s 3(1b) of the Act that premises located at 44 Darlinghurst Road, Potts Point, New South Wales 2011 are premises to which Part 2 of the Act applies; 3. Costs, unless the application is heard ex parte. 1. As to proposed order 1, the matter came before Beech-Jones J on 15 July last, at which time his Honour formed the view that it would not be appropriate to deal with the application ex parte. All defendants have now been served and have entered appearances, such that proposed order 1 is rendered nugatory. 2. As to proposed order 3, although the matter has not been heard ex parte, I have been informed by counsel for the plaintiff that no order for costs will be sought. 3. Counsel for the first defendant has informed me that the first defendant, in effect, consents to the orders sought. The first defendant does not obviously consent to any order for costs but as I have indicated, no order for costs is sought. 4. The second and third defendants have been served. Submitting appearances have been filed by each of them. A submitting appearance has also been filed by a related entity which is not named as a defendant in the proceedings. 5. The summons is supported by an affidavit of Garren Anthony Hamilton, a Detective Sergeant of Police sworn on 14 July 2016. I have read that affidavit. I have also viewed exhibit GH-2 to that affidavit which is footage of a search warrant executed on the subject premises on 8 July 2016. That footage is not of particularly good quality but there are a series of photographs annexed to Detective Hamilton's affidavit which go to establishing the nature of the premises at 44 Darlinghurst Road Potts Point ("the premises") and their use. 6. The first defendant is the registered proprietor of the premises. At street level two commercial businesses are in operation. It is important to note that the form of the order which is sought does not extend to cover the operation of those businesses. 7. The premises have five separate stories, within which there are a number of rooms. A brothel apparently operates from levels 1 and 2. On the upper levels there are rooms from which "freelance sex workers" are said to operate. At the basement there is a strip club. There are rooms on level 5 which are used for the administration and management of that business. There is an internal staircase which allows access from the basement to the upper levels. 8. The second defendant records its place of business as being at 44 Darlinghurst Road. The third defendant shares the same business address as the second defendant. There is evidence of the second defendant having entered into a lease of the premises from the first defendant back in 1999. That lease has long since expired. There appears to be some loose arrangement presently in force pursuant to which the premises continue to be leased from the first defendant by the second defendant. 9. The affidavit of Det. Hamilton establishes that as long ago as 1995 police began to receive various reports relating to the premises and their use. In fact, since 1995 a total of 121 intelligence reports have been compiled by police based on information received from members of the public. Some of those reports are annexed to Det. Hamilton's affidavit. Those reports tends to establish that since 1995 the premises have consistently been used, at least in part, for the use and supply of prohibited substances. 10. A search warrant was executed on the premises on 8 July 2016 and while, as I have said, the footage of the execution of that warrant is not particularly good, there are still photographs taken at the time which are annexed to Mr Hamilton's affidavit. Those photographs show, amongst other things: 1. bottles of alcohol which appear to be organised in a way which is consistent with alcohol being supplied from the premises; 2. a cash register, one of the buttons of which appears to designate the sale of alcohol; 3. utensils, including water pipes, used for the purposes of administering illegal drugs; and 4. paraphernalia which is clearly associated with the supply and use of illicit drugs including spoons, lighters, plastic bags, scales, syringes and torniquetes. 1. There is also a photograph of an internal doorway within the premises, written on the outside of which are the words: "Billy's Drug Den. Please nock" (sic). 1. Section 3 of the Act is contained within Part 2 relating to disorderly houses. It confers a discretion on this Court (and upon the District Court) to make a declaration in relation to premises and is in the following terms: 3 Declaration by Supreme Court or District Court in relation to premises (1) On a senior police officer showing reasonable grounds for suspecting that all or any of the following conditions obtain with respect to any premises, that is to say: (a) that drunkenness or disorderly or indecent conduct or any entertainment of a demoralising character takes place on the premises, or has taken place and is likely to take place again on the premises, or (b) that liquor or a drug is unlawfully sold or supplied on or from the premises or has been so sold or supplied on or from the premises and is likely to be so sold again on or from the premises, or (c) that reputed criminals or associates of reputed criminals are to be found on or resort to the premises or have resorted and are likely to resort again to the premises, or (d) that any of the persons having control of or managing or taking part or assisting in the control or management of the premises: (i) is a reputed criminal or an associate of reputed criminals, or (ii) has been concerned in the control or management of other premises which have been the subject of a declaration under this Part, or (iii) is or has been concerned in the control or management of premises which are or have been frequented by persons of notoriously bad character or of premises on or from which liquor or a drug is or has been unlawfully sold or supplied, The Supreme Court or the District Court may declare such premises to be premises to which this Part applies. (2) Such declaration shall be in force until rescinded. (3) The appropriate Court may, in declaring premises to be premises to which this Part applies, state that the reason (or the predominant reason) for the declaration is that: (a) reputed criminals have attended or are likely to attend the premises, or (b) a reputed criminal has, or takes part or assists in, the control or management of the premises. Any such declaration is a "reputed criminal declaration" for the purposes of this Act. 1. The present application is based upon s. 3(1)(b). 2. The term "premises" is defined in s 2 of the Act to include any building and any part of any building. It does not include licensed premises or the premises of any registered club. Although it is apparent that alcohol is being used (and, it seems, sold from the premises) there is certainly no evidence of any licence attaching the premises authorising such sale. 3. The power of the Court to make a declaration under s 3 of the Act is dependent upon a senior police officer showing reasonable grounds for suspecting that the conditions in s 3 (1)(b) apply to the premises. The term "senior police officer" is defined in s 2 of the Act to mean "a police officer of or above the rank of Sergeant". In paragraph 2 of his affidavit Detective Sergeant Hamilton deposes to the fact that he is a Detective Sergeant of Police. Accordingly he is, for the purposes of the Act, a senior police officer. 4. I have already set out some aspects of the evidence which is before me. I am satisfied on the basis of that evidence that both liquor and illicit substances have been used at, and/or supplied from, the premises. 5. The intelligence reports to which I referred, which date back to 1995, tend to indicate that the use and supply of illicit substances from the premises has been ongoing for some considerable period of time. Given the length of time over which that has occurred, also given the nature and extent of that activity as established by the evidence before me, I am satisfied that absent any intervention, it is likely that such activity will continue indefinitely. There is nothing whatsoever in the evidence before me which might even remotely suggest that such activity would be likely to cease in the short, medium, or long term. 6. There is no reason why, having regard to the evidence, the declaration sought should not be made. 7. Accordingly I make the following orders: 1. I declare, pursuant to the provisions of s 3 (1) of the restricted premises Act 1943 that the premises described below, namely the land comprising Deposited Plan 1/1803082, and the building thereupon, being 44 Darlinghurst Road, Potts Point but not including 44A and 44B Darlinghurst Road, Potts Point, they being separate commercial premises operating at street level, are premises to which Part 2 of the Restricted Premises Act 1943 applies. 2. I note the terms of s 4 of the Restricted Premises Act 1943 which provides as follows: 4 Rescission of declaration (1) Any such declaration may be rescinded by the appropriate Court subject to such terms as the Court thinks fit, on application being made to it: (a) by the owner or occupier of the premises, the subject of the declaration, on proof that the owner or occupier has not at any time allowed any of the conditions referred to in subsection (1) of section 3 to obtain in relation to such premises, or (b) by a senior police officer on proof that there is no reasonable ground for suspecting that any of the conditions referred to in subsection (1) of section 3 obtain in relation to such premises. (2) Where an application under this section is made by the owner or occupier of the premises notice in writing of intention to make the same shall be served on a senior police officer two days at least before the hearing of such application. 1. I make no order as to costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 July 2016