Burns v Seagrave & Anor [2000] NSWSC 77

New South Wales Supreme Court

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 Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Ms S Seagrave JUDICIAL OFFICER :

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 Ball v McIntyre [1966] 9 FLR 237 CASES CITED : 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 Act 1988. 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: