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Martin v Nalder

Martin v Nalder

Case [2016] WASC 138 3 May 2016

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MARTIN -v- NALDER [2016] WASC 138

CORAM: TOTTLE J

HEARD: 26 NOVEMBER 2015

DELIVERED : 3 MAY 2016

FILE NO/S: CIV 2367 of 2015

BETWEEN: PETER JOHN MARTIN
First Applicant
ZORAN JANKULOVSKI
Second Applicant
SATINDER SINGH SAMRA
Third Applicant
AND
THE HON DEAN CAMPBELL NALDER
First Respondent
DIRECTOR-GENERAL OF THE DEPARTMENT OF TRANSPORT
Second Respondent

Catchwords:

Judicial review - Mandamus - Application for mandamus to compel respondents to prosecute named entities associated with UberX service - Whether prosecutorial discretion is susceptible of judicial review - Whether public duty to prosecute - Whether public duty to consider whether to prosecute

Judicial review - Unlawful policy - Whether respondents had 'no prosecution' policy in relation to Uber - Whether policy inconsistent with statute conferring prosecutorial discretion

Judicial review - Standing - Locus standi for mandamus - Where applicants' livelihood and income affected - Where relief sought would affect regulation of taxi industry and applicants were directly involved in the industry

Judicial review - Declarations - Where applicants sought declaration that respondents had failed to prosecute Uber companies and associated persons - Where Uber companies and associated persons not party to proceedings - Whether court should make declaration affecting interests of third parties - Whether court should make declaration in relation to commission of criminal offences

Legislation:

Criminal Procedure Act 2004 (WA)
Police Act 1892 (WA)
Taxi Act 1994 (WA)
Taxi Regulations 1995 (WA)
Transport Co-ordination Act 1966 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Applicant              :     Mr M L Bennett & Mr D Banda
Second Applicant          :     Mr M L Bennett & Mr D Banda
Third Applicant            :     Mr M L Bennett & Mr D Banda
First Respondent           :     Mr C S Bydder
Second Respondent       :     Mr C S Bydder

Solicitors:

First Applicant              :     Bennett + Co
Second Applicant          :     Bennett + Co
Third Applicant            :     Bennett + Co
First Respondent           :     State Solicitor for Western Australia
Second Respondent       :     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146 CLR 493
Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd [1988] HCA 49; (1998) 194 CLR 247
Gedeon v New South Wales Crime Commission (2008) 236 CLR 120
King-Brooks v Roberts (1991) 5 WAR 500
Likiardopoulos v The Queen [2012] HCA 37; (2012) 247 CLR 265
Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825
NEAT Domestic Trading v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277
Perder Investments Pty Ltd v Lightowler (1990) 25 FCR 150
R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177
R v Arndel (1906) 3 CLR 557
R v Chief Constable of Sussex; Ex parte International Trader's Ferry Ltd [1999] 2 AC 418
R v Commissioner of Police of the Metropolis, Ex parte Blackburn [1968]…

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 Martin v Nalder

Details

AGLC: Martin v Nalder [2016] WASC 138
Case: [2016] WASC 138
Decision Date: 3 MAY 2016

CaseChat Overview and Summary

The applicants, Martin and Nalder, sought judicial review of the decision by the respondents, the Director of Public Prosecutions and the Commissioner of Police, not to prosecute companies and individuals associated with UberX. The applicants, who were taxi drivers, argued that the respondents' failure to prosecute Uber companies and associated persons was unlawful and that they should be compelled to do so. The matter was heard in the Federal Court of Australia.

The court was required to determine whether the respondents' prosecutorial discretion was subject to judicial review and whether there was a public duty to prosecute or to consider prosecution. The court also needed to consider whether the respondents had an 'no prosecution' policy in relation to Uber and whether such a policy was inconsistent with the statute conferring prosecutorial discretion. Furthermore, the court had to examine whether the applicants had standing to bring the proceedings and whether it was appropriate to make a declaration affecting the interests of third parties who were not parties to the proceedings.

The court held that the respondents' prosecutorial discretion was not subject to judicial review, and there was no public duty to prosecute or to consider prosecution. The court found that the respondents did not have an 'no prosecution' policy in relation to Uber, but their policy was inconsistent with the statute conferring prosecutorial discretion. However, the court held that the applicants did not have standing to bring the proceedings as their livelihood and income were affected by the respondents' decision not to prosecute. The court also held that it was not appropriate to make a declaration affecting the interests of third parties who were not parties to the proceedings.

The court dismissed the applicants' application for judicial review and made no orders.

Orders