Brebner v Bruce [1950] HCA 36

High Court of Australia Latham C.J. McTiernan, Webb, Fullagar, and Kitto JJ. Brebner v Bruce [1950] HCA 36

ORDER Appeal allowed. Appellant to pay costs of appeal. Orders of Supreme Court and of Special Magistrate discharged. Case remitted to Special Magistrate.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 23 Latham C.J.

This is an appeal by special leave from an order of the Supreme Court of South Australia (Napier C.J.) dismissing an appeal from a decision of a special magistrate dismissing a complaint against Donald Bruce for a breach of the Telephone Regulations made under the Post and Telegraph Act, 1901-1949. Bruce was charged with a breach of reg. 63, which provides, inter alia, that—"(1) Any person who—(a) whilst using any telephone, associated with or connected to the telephone system, makes use of any unbecoming expression or of any language of an objectionable, obscene or offensive nature, or of a character calculated to provoke a breach of the peace; or (b) mischievously uses any such telephone for the purpose of irritating any person, or of conveying any fictitious order or instruction or message, shall be guilty of an offence."

It was proved that Bruce had used offensive language over the telephone, addressing a person abusively as a bastard. The magistrate dismissed the complaint because the information had been laid by the complainant Brebner, who was a constable of police, without any authority from the Postmaster-General. An appeal to the Supreme Court failed, Napier C.J. following and applying the decision of Halse Rogers J. in Ex parte Edwards; Re Norris [1] , approved by the Full Court of New South Wales in Ex parte Greene; Re Robertson [2] . In In re Morrison [3] , a contrary opinion had been expressed by the Full Court of South Australia.