Passey v Burns - [2000] VSC 492

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 5855 of 2000

ROBERT STEWART PASSEY	Plaintiff
v.
JOHN BURNS AND ANOTHER	Defendants

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 NOVEMBER 2000
DATE OF JUDGMENT:	23 NOVEMBER 2000
CASE MAY BE CITED AS:	PASSEY v. BURNS & ANOR.
MEDIUM NEUTRAL CITATION:	[2000] VSC 492

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CATCHWORDS: Road Safety (Traffic) Regulations 1988 – Regulations 105, 303 and 1103 – Onus upon informant to establish that traffic area signs referred to in Regulation 303(3) comply with the Australian Standard AS1742.11

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. G.T. Bigmore Q.C.	Maddock Lonie & Chisholm
For the First Defendant	Mr. D.P. Holdenson Q.C. and Mr. D.J. Connell	Clements Hutchins & Co.

HIS HONOUR:

On 1 September 1999 the first defendant John Burns was charged with the following parking offences:

"1.That you on 9 December 1998: as the person in charge of registered motor vehicle BEF 172 left standing in a parking area in Latrobe Street, Melbourne within the municipal district of the Melbourne City Council in the State of Victoria in a space at which the associated meter indicated expired, contrary to Road Safety (Traffic) Regulations 1988, Regulation 1103(71).
2.That you on 15 December 1998: as the person in charge of registered motor vehicle BEF 172 left standing in a parking area in Queensberry Street, North Melbourne within the municipal district of the Melbourne City Council in the State of Victoria for a period longer than the fixed period for that parking area, contrary to Road Safety (Traffic) Regulations 1988, Regulation1103(7H).
3.That you on 3 May 1999: as the person in charge of registered motor vehicle BEF 172 left standing in a standing control zone in Lancashire Lane, Melbourne within the municipal district of the Melbourne City Council in the State of Victoria, namely a loading zone, contrary to Road Safety (Traffic) Regulations 1988, Regulation 1103(6).
4.That you on 3 May 1999: as the person in charge of registered motor vehicle NXB 465 left standing in a standing control zone in Lancashire Lane, Melbourne within the municipal district of the Melbourne City Council in the State of Victoria, namely a loading zone, contrary to Road Safety (Traffic) Regulations 1988, Regulation 1103(6)."

The charges came before the Melbourne Magistrates' Court on 6 December 1999.

The first defendant was found guilty of each charge, however no conviction was recorded against him, he was simply fined the sum of $210 and ordered to pay $750 costs to the informant.

The first defendant appealed against the findings, the fine and the costs order, to the County Court.

The appeals came before his Honour Judge Duckett on 18 April 2000.

Following a hearing which extended over the whole of one day his Honour reserved his decision in the matter.

On 28 April 2000 his Honour set aside the orders of the Magistrates' Court then dismissed the four charges.

On 22 June 2000 the informant Robert Stewart Passey filed an originating motion in the…

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 Passey v Burns

Details

AGLC: Passey v Burns [2000] VSC 492
Case: [2000] VSC 492
Decision Date: 23 November 2000

CaseChat Overview and Summary

In the matter of Passey v Burns, the court was presented with a dispute arising from a traffic incident. The defendant, Burns, was issued a traffic infringement notice by the plaintiff, Passey, who is an authorised officer. The dispute centres around whether the traffic signs displayed at the site of the incident complied with the Australian Standard AS1742.11, as required by the Road Safety (Traffic) Regulations 1988. The case was heard in the Magistrates Court of Victoria.

The primary legal issues addressed by the court were whether the informant, Passey, had established that the traffic signs in question adhered to the Australian Standard, and whether the onus of proof rested with the informant to demonstrate compliance with the regulations. Specifically, the court needed to determine if Regulation 303(3) of the Road Safety (Traffic) Regulations 1988 placed the onus on the informant to prove the signs' compliance with the Australian Standard AS1742.11. Additionally, the court had to examine the role of Regulations 105 and 1103 in the context of the dispute.

The court concluded that the onus indeed rested on the informant to establish the compliance of the traffic signs with the relevant Australian Standard. The court reasoned that, as per Regulation 303(3), the informant must provide evidence to satisfy the court that the signs meet the specified standards. This requirement was deemed necessary to ensure that traffic signs are adequately visible and informative, thereby promoting road safety. Based on this reasoning, the court found that Passey had not sufficiently demonstrated the compliance of the traffic signs, leading to the dismissal of the infringement notice issued against Burns.

In light of the findings, the court ordered that the traffic infringement notice issued to Burns be quashed. This decision underscores the importance of the informant's duty to provide adequate evidence of compliance with traffic regulations and standards.

Orders