Burns v Seagrave - [2000] NSWSC 77

CITATION: Burns v Seagrave & Anor [2000] NSWSC 77

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 12197/99

HEARING DATE(S): 15 February 2000

JUDGMENT DATE: 23 February 2000

PARTIES :

Garry Richard BURNS - Plaintiff
Suzanne SEAGRAVE - Defendant

JUDGMENT OF: Simpson J at 1

LOWER COURT
JURISDICTION : Local Court

LOWER COURT
FILE NUMBER(S) :

LOWER COURT
JUDICIAL OFFICER : Ms S Seagrave

COUNSEL : M Bateman - Plaintiff
P Lakatos - Defendant

SOLICITORS: John A Hunter - Plaintiff
S E O'Connor - Defendant

LEGISLATION CITED: Summary Offences Act 1988
Director of Public Prosecutions Act 1986

CASES CITED: Ball v McIntyre [1966] 9 FLR 237
Anderson v Kynaston [1924] VLR 214
Saunders v Herold (1991) 105 FLR 1
Spence v Loguch, unreported, SCNSW 12 November 1992

DECISION: Summons dismissed - plaintiff to pay the defendant's costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
SIMPSON J
23 February 2000
12197/99

Garry Richard BURNS v Suzanne SEAGRAVE & Anor

Judgment

HER HONOUR :

1 On 27 July 1998 in the Downing Centre Local Court a summons was issued against the present plaintiff charging that, on 20 June 1998, he behaved in an offensive manner. The charge was brought under s 4(1) of the Summary Offences Act1988. On 24 May 1999, after a contested hearing, Ms Suzanne Seagrave LCM dismissed the charge. On behalf of the plaintiff an application was then made for costs but the magistrate declined to make an order in his favour. The decision to refuse the application is challenged in the present proceedings. The precise mechanics of this application need not be considered. The second defendant, the Director of Public Prosecutions, who has been substituted for the originally named second defendant pursuant to ss 9 and 10 of the Director of Public Prosecutions Act 1986, concedes that the court has jurisdiction to entertain the claim and to make orders substantially in the terms sought should the plaintiff succeed in establishing error.
2 S 4 of the Summary Offences Act is in the following terms:

“Offensive conduct
4.(1) A person must not conduct himself or herself in an offensive manner in or near, or within view or hearing from, a public place or a school.
Maximum penalty: 6 penalty units or imprisonment for 3 months.
(2) A person does not conduct himself or herself in an offensive manner as referred to in subsection (1) merely by using offensive language.
(3) It is a sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence.”

3 The prosecution case was conveniently summarised in a document entitled “Breach Report” dated 9 July 1998 which formed part of the prosecution brief and which was tendered in evidence as Ex A in these proceedings. The substance of what was alleged against the plaintiff was stated as follows. At about 8.40 pm…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burns v Seagrave

Details

AGLC: Burns v Seagrave [2000] NSWSC 77
Case: [2000] NSWSC 77
Decision Date: 23 February 2000

CaseChat Overview and Summary

The case of Burns v Seagrave, decided by Simpson J in the Supreme Court of New South Wales, revolves around an appeal by the plaintiff, Garry Richard Burns, against the Local Court's decision to deny his application for costs. Burns was originally charged with offensive conduct under the Summary Offences Act 1988, following an incident at a police station. The charge was dismissed by Magistrate Suzanne Seagrave after a contested hearing, but the plaintiff's subsequent application for costs was refused. Burns now challenges this refusal in the Supreme Court.

The legal issues in this case primarily concern the interpretation of section 4 of the Summary Offences Act 1988, particularly in relation to the definition of offensive conduct, and the conditions under which costs may be awarded under section 81 of the Justices Act 1902. The plaintiff argues that the proceedings against him were initiated without reasonable cause, which would entitle him to an award of costs. Conversely, the defendant contends that the magistrate's decision was correct and that the plaintiff is not entitled to costs.

Simpson J carefully considered the arguments presented by both parties. The judge noted that the magistrate found that the plaintiff's conduct, though offensive, did not meet the threshold of "offensive manner" as defined by section 4(2) of the Act, which exempts the use of offensive language alone. The plaintiff argued that since the charge could not be sustained based on the language alone, the proceedings were without reasonable cause. However, the judge rejected this argument, holding that the totality of the plaintiff's conduct, including his language and physical behavior, could indeed constitute an offensive manner. Thus, the judge found that the magistrate was correct in establishing a prima facie case and subsequently dismissing the charge based on the evidence presented.

In conclusion, Simpson J found no error in the magistrate's approach and reasoning. The summons was dismissed, and the plaintiff was ordered to pay the defendant's costs.

Orders