Uber BV v Howarth

[2017] NSWSC 54

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Uber BV & Anor v Howarth [2017] NSWSC 54

Hearing dates:

6 & 7 February 2017

Date of orders:

03 April 2017

Decision date:

03 April 2017

Jurisdiction:

Equity

Before:

Slattery J

Decision:

Permanent injunction granted.

Catchwords:

TORT – tort of intimidation – application for injunction in Equity’s auxiliary jurisdiction and under Supreme Court Act 1970, s 66 – plaintiffs facilitate drivers to provide transport services to members of the public – defendant performs citizen’s arrests upon, and engages in threatening behavior against the plaintiff’s employees and persons using the plaintiff’s technology to provide transport services - plaintiff seeks to restrain the defendant from intimidation, arresting, threatening or harassing the defendant’s employees or drivers who have entered contracts with the plaintiff to use the plaintiff’s technology platform to provide transportation services to third parties – whether plaintiff committed the tort of intimidation – whether existing interlocutory injunction should be made permanent.

Legislation Cited:

Crimes Act 1900
Evidence Act 1995, s 128
Law Enforcement (Powers and Responsibilities) Act 2002
Passenger Transport Act 1990
Passenger Transport Amendment (Taxis and Hire Cars) Regulation 2015
Passenger Transport Regulation 2007
Supreme Court Act 1970, s 66

Cases Cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Barber v Penley [1893] 2 Ch 447
Castlemaine Tooheys Ltd v State of South Australia (1986) 161 CLR 148
Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2014) 45 VR 571
Corvisy v Corvisy [1982] 2 NSWLR 557
Day v Brownrigg (1878) 10 Ch D 294
Dowse v State of NSW [2012] NSWCA 337
Director of Public Proescutions (NSW) v AM (2006) 161 A Crim R 219Director of Public Prosecutions v CAD [2003] NSWSC 196
Director of Public Prosecutions (NSW) v Carr [2002] 127 A Crim. R. 151
Director of Public Prosecutions (NSW) v Mathews – Hunter (2014) 242 A Crim R 319
Earl of Harrington v Corporation of Derby. [1905] 1 Ch 205
Foster v R (1993) 67 ALJR 550
Fleet v District Court of NSW [1999] NSWCA 363
Jenkins v Hope [1896] 1 Ch 278
Kruger v The Commonwealth of Australia (1997) 190 CLR 1
Leader v Moody (1875) LR 20 Eq 145
Llandudno Urban District Council v Woods [1899] 2 Ch 705
London and Blackwell Railway Company v Cross (1885) 31 Ch D 354
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Proctor v Bayley (1889) 42 Ch D 390
R v Clarence (1888) 22 QBD 23
R v Dungay (2001) 126 A Crim R 216
Shanahan v Fitzgerald [1982] 2 NSWLR 513
Sid Ross Agency Pty Limited v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760
Waterside Workers Federation of Australia v J.W. Alexander Ltd (1918) 25 CLR 434
Williams v R (1986) 161 CLR 278

Texts Cited:

RP Meagher, JD Heydon, MJ Leeming, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed 2015, Butterworths LexisNexis), [21 – 040], [21-060].

Category:

Principal judgment

Parties:

First Plaintiff: Uber BV
Second Plaintiff: Uber Australia Pty Ltd
Defendant: Russell Howarth

Representation:

Counsel:

 

Plaintiffs: B. McClintock SC, S. A. Lawrance, P. Lange
Defendant: in person

 

Solicitor:

  Plaintiffs: Nicholas Hanna, Hanna Legal
Defendant: n/a

File Number(s):

2015/192725

Publication restriction:

No

Judgment

1. The plaintiffs, Uber BV and Uber Australia Pty (Uber) (subsidiaries of Uber Technologies, Inc) operate an internet-based business enabling drivers of private cars in this state to connect with members of the public requiring transport as passengers. The defendant, Mr Russell Howarth, believes that the business Uber has operated since 2014 contravenes provisions of this state’s Passenger Transport Act 1990 and associated regulations.

2. Mr Howarth has acted on his beliefs. He conducted several citizen’s arrests upon Uber drivers between October 2014 and July 2015, before this court restrained him by interlocutory injunction from continuing this activity. Uber says that Mr Howarth’s conduct constitutes the tort of intimidation. It now seeks to make permanent an injunction granted against him in July 2015. Mr Howarth resists this relief.

3. The proceedings were heard over two days on 6 and 7 February 2017. Mr McClintock SC, Mr S. Lawrance and Mr P. Lange appeared for the plaintiffs instructed by Hanna Legal. The defendant was not legally represented and appeared throughout the hearing in person.

Mr Howarth and Uber – 2014 to 2016

4. Mr Howarth and Uber had been long in contact before a dispute between them came to a head in July 2015.

5. From about 22 October 2012, Uber, via its software application (Uber App) facilitated private drivers supplying transportation services for paying passenger clients in Australia under the name “UberBLACK”. Uber expanded the Uber App in 17 June 2013 to add the “UberTAXI” service, which allows licensed taxi drivers to provide transportation services to passengers.

6. On about 7 April 2014, Uber added what is known as the “UberX” service to the Uber App. UberX facilitates the transportation of passengers by private citizen drivers using their own vehicles (that are not licensed hire cars or taxis) to provide the service.

The “Arresting Uber” campaign

7. In about October 2014, Mr Howarth embarked on a campaign against UberX. The campaign, “Arresting Uber”, targeted UberX because Mr Howarth believed it was the “illegal arm” of the Uber business. His message was that UberX operated contrary to the laws and regulations of this state, in contrast to the UberBLACK and UberTAXI services and other licensed and accredited private hire vehicles.

8. Mr Howarth is a former Uber driver-partner, with 10 years’ experience as a police officer in the United Kingdom, including two years as a riot police officer. He has also previously described himself as a “Corporate War Consultant” on a LinkedIn social media profile. Mr Howarth has described the Arresting Uber campaign as a “war”. Mr Howarth concedes this description was used during the campaign, but that such descriptions should be attributed to the characteristic “theatrics” and “banter” of social media.

9. During the Arresting Uber campaign Mr Howarth arrested UberX driver-partners. At the time of the arrests he sought attention from the media and support on social media for his cause.

10. Mr Howarth’s modus operandi for these arrests was straightforward. First, he used the Uber App to book and pay for an UberX trip. Once the journey had ended, Mr Howarth would approach the UberX driver-partner and communicate his intent to arrest that person. He would then purport to detain that person, call the police, and wait until the police attended the scene. Mr Howarth also invited the media to attend to witness and report some of these arrests. He says they were a public interest issue. Mr Howarth performed at least nine arrests himself in this manner between mid-October 2014 and mid-June 2015.

11. Uber contends that as part of the campaign Mr Howarth founded and authored a website titled “Arresting Uber”. This website was accessible online at (Arresting Uber website) but it is no longer operational.

12. Uber relies on the following statement, which appeared on the Arresting Uber website, as proof of Mr Howarth’s authorship:

"Note: A few words about the author and poster of this site:

Russell Howarth has been an industry advocate for over ten years now. Formerly with the London Metropolitan Police working in advanced riot- policing, counter‑terrorism, working with MI6. Now looking after key world figures, celebrities, corporates and personal clients travelling around Sydney and Australia.

Russell was an early Uber adopter and significant Uber partner with multiple vehicles on the Uber system and facilitated scores of other vehicles onto the Uber App. Recently asked by Uber, ('chosen out of thousands of partners) to be a brand ambassador, for a video testamonials [sic] shoot for Uber.

The Join Us page are the views of Russell Howarth. The assertions made are his, and he stands by them 100%."

13. For reasons which are explained later, it is reasonable to infer, and I do, that Mr Howarth was responsible for making this statement on this website.

14. Uber also contends that Mr Howarth also authored numerous tweets during the Arresting Uber campaign, using three Twitter accounts under the following Twitter ‘handles’, or display names (together, the Twitter accounts):

1. @arrestinguber;

2. @Beenubered; and

3. @freespeaktweet

15. No subpoenas were issued by Uber for documents to support the issue of authorship of the Twitter accounts. But Mr Howarth contests that he was the author of all content published on the Arresting Uber website and the tweets posted from the Twitter accounts, as tendered by Uber in the proceedings.

16. Ordinarily it is inadmissible to accept the evidence of an agent to identify that agent’s principal. The court should not readily infer just from the content of these websites that Mr Howarth is responsible for them. On their own the court would not be inclined to do so. But the court has more than just the content of the websites and tweets to rely upon to draw inferences in this case. The court has three other evidentiary platforms which found inferences of Mr Howarth’s involvement in all these tweets and all these website posts.

17. The first platform is the admissions that he made in court. He did admit association with tweets and websites in what he said to the court. He said “I didn’t construct the [Arresting Uber] website. I didn’t post it. I had maybe 50% of input into the words in some of those statements”.

18. The second platform for inference is Mr Howarth’s proven public statements that he is a leading participant in the Arresting Uber campaign. It is reasonable to infer from his public statements to that effect that he either set in motion himself or supported the work of others in that campaign. All the tweets which are relied upon in this case can be classified by their content, or by the circumstances in which they were sent, as a part of that campaign.

19. The third platform for inference is a negative one. Mr Howarth has not anywhere denied an association with these tweets or these websites. There is no evidence that he has tried to shut them down, disassociate himself from them, or write to their operators to ask for them to cease and desist publication. He would be the person that should be in a position to adduce evidence to show that he had tried to disassociate himself from the parts of the Arresting Uber campaign with which as a general campaign he is publicly associated. His failure to adduce evidence of his attempts to distance himself from these websites or tweet sources is another basis upon which the court can infer either his authorship or approval of both kinds of communication.

20. Ordinarily one would not infer that Mr Howarth was the author of these tweets merely from their contents. Anyone could have impersonated Mr Howarth and issued a tweet claiming to be him. But the tweets must be assessed as a whole and when viewed in their context it is quite clear that whether or not Mr Howarth personally authored them he knew and approved their contents, as they were issued as part of the Arresting Uber campaign of which he was and at all relevant times remained a leader.

21. In summary, Mr Howarth’s approval of these tweets may be inferred from many factors, the principal among these are the following:

1. Mr Howarth leads the Arresting Uber campaign and the tweets are issued pursuant to that campaign.

2. Mr Howarth has not sought to disassociate himself from the campaign tweets at any time.

3. The subject matter of the tweets is at the relevant time closely related to the arrests that Mr Howarth is about to effect or just effected.

4. The content of the tweets is often speaking from the perspective of one individual (such as Mr Howarth) who is taking responsibility for the direction of the campaign, as Mr Howarth plainly was through leading the arrests.

5. The tweets about the arrests are sourced from information that could only be known by someone, such as Mr Howarth, who was directly involved in the arrests, and when it is not clear that anyone else was involved in some of the arrests.

6. The tweets reflect views about Uber’s activities and possible contravention of legislation that coincide with Mr Howarth’s views.

22. Mr Howarth admitted to this court, and I accept, that he composed some tweets and endorsed others which were composed and posted on the Twitter accounts by one of any three of his associates on the Arresting Uber campaign. I infer from Mr Howarth’s admissions to this court that he was primarily responsible for the content on the Arresting Uber website.

23. Mr Howarth informed this court that a number of tweets from the Twitter accounts were not admitted into evidence. Mr Howarth was invited by the court to produce further evidence of additional tweets to make the record complete if he so chose. He did not do so.

Arrests performed by Mr Howarth and/or his associates

24. Uber’s case is that Mr Howarth had performed nine citizen’s arrests upon Uber drivers between mid-October 2014 and mid-June 2015, followed in June-August 2016 by various incidents of intimidation and harassment without arrest. Some of the evidence supporting Mr Howarth’s involvement in each of the nine alleged arrests covers all the arrests. The evidence of his common involvement mostly comes from Mr Howarth himself. But some evidence is different for each arrest. Some of the arrests were filmed for television after Mr Howarth had given advance warning to the media that an arrest was likely. For others the evidence of the arrest is indirect.

25. But all the evidence may be considered together. The lack of direct evidence in some cases is supplemented by patterns of conduct that emerge from the arrests, where the evidence is more complete.

26. For convenience, these reasons set out the nine alleged arrests in chronological order from October 2014 to June 2015. Mr Howarth himself counts eight arrests between 16 October 2014 and 19 November 2014. The ninth arrest was not until some six months later, on 20 June 2015.

27. That Mr Howarth is the actor who conducts each of the nine arrests is beyond doubt. In his YouTube Game of Thrones video Mr Howarth admits that he has arrested nine UberX drivers. It will be seen from the pattern of tweets, for which Mr Howarth is said to be responsible, that the arrests are counted, as they occur, from one to nine. Mr Howarth was at least aware of these tweets, although he denies he is their author. The nine arrests that he refers to in the YouTube video, probably produced at the end of the period of the arrests, is referring to these nine particular arrests.

28. Mr Howarth conducted a radio interview with radio station Triple J on 1 December 2014. The program shows he is counting the number of arrests he has effected. The host, Mr Tom Tilly, asked Mr Howarth a question about his citizen’s arrests, ”Has it gotten ugly yet? You’ve conducted eight of these now, how’s it gone down?” Mr Howarth’s response did not deny his involvement in the eight arrests that had taken place up to that point. But he answered upon the assumption that he was responsible for the arrests and explains the method he used to effect them “But basically yes, someone resists arrests then I, um, have to use whatever force is reasonably necessary”.

29. In the same radio interview Mr Howarth confirms the number of eight arrests had been reached. He says to a caller “Adrian” who telephones in to the interview to express his views, “Hi, Adrian yeah, look. Um, of all the drivers I have arrested, it’s been eight so far, um, none of the drivers realise that their insurance, the private insurance they have on their car, might not cover them, and it most definitely wouldn’t, because it’s not for hire or rewards”.

30. Mr Howarth admitted in court that he was involved in the nine arrests. Although he did not give evidence, he made admissions, such as this, from the bar table.

31. Mr Howarth repeatedly publicly confirmed the eight arrests up to 19 November 2014. He gave a radio interview to radio station 2UE on 24 November 2014, five days after what became the eighth arrest. He said to the interviewer, Mr Justin Smith, “well look, we are up to arrest No. 8 now”.

32. This interview is important for another reason also. In it Mr Howarth claims he was acting with a number of other people, including the state government, in making these arrests, and that the object of the arrest is to shut Uber down: “So the Government is now actually saying that they will step up and my understanding is that I will be working with them later this week. And there will be a massive operation and UberX will be effectively shut down”.

33. Mr Howarth’s admitted involvement in the nine arrests becomes an important factual platform for the drawing of inferences about other events and documents associated with the arrests, which now require individual analysis.

The First Arrest – 16 October 2014

34. On 16 October 2014, Mr Howarth arrested an UberX driver-partner (“the first arrest”). Mr Howarth admitted in court that he conducted this arrest.

35. Following the first arrest, at 5:30pm, someone posted the following tweet on the @arrestinguber Twitter account:

“Amazing scenes outside Newtown Court House, Sydney as first of many UberX drivers being arrested.”

36. This tweet was accompanied by two photographs of Mr Howarth. In one of those photographs, Mr Howarth is pictured with his right hand placed on the right arm of the UberX driver-partner being arrested on this occasion.

37. Uber submits Mr Howarth admitted out of court that he performed this arrest. Uber relies on the content published on the Arresting Uber website after this, and each subsequent arrest took place. The Arresting Uber website featured a statement about the arrest on 16 October 2016, partially extracted below:

“At 4:03pm on 16th October, 2014 Russell Howarth, an established Sydney Hire Car driver with over 10 years’ experience made Australia's first stand against the illegal American owned business Uber - that operates an unlicensed, illegal passenger transport service known as UberX.

Russell used the App to book a driver to take him to Sydney's Newtown Police station…

Upon arrival of [sic] the police station, Russell performed a citizen arrest on the driver…”

38. The statement continued, outlining Mr Howarth’s claimed reasons for performing the arrest: his ongoing concern for public safety and his belief that it was unfair that UberX could continue to “operate legally and safely with impunity”, adopting the terms of the published statement. The combination of Mr Howarth’s in court admission of involvement allows the court to infer that Mr Howarth was responsible for this statement.

The Second Arrest- 21 October 2014

39. Five days later, on 21 October 2014, Mr Howarth arrested an UberX driver at Sydney Airport (“the second arrest”).

40. Later that same evening, Mr Howarth or one of his associates in the campaign with his approval, posted the following two tweets from the @arrestinguber Twitter account about the second arrest:

At 5:27pm: “Just arrested UberX driver now. Sydney airport. Details soon.”

At 6:37pm: “OK. Looking for another UberX booking. Another arrest pending if enough drivers want me to continue. Do I have support out there?”

41. Following the second arrest, the @arrestinguber Twitter account posted tweets foreshadowing further arrests:

On 22 October 2014 at 1:16am:

“…nine more arrests imminent unless they cease UberX.”

On 23 October 2014 at 3:47am:

“Holding signs doesn’t work…ArrestingUber DOES! RT RT & FOLLOW because you know I will – ARREST ARREST ARREST”

On 1 November 2014 at 1:11am:

“Whilst watching the Apprentice I have had a brainwave to seriously hurt Uber – give me [a] few days [sic]…absolute KILLER!”

The Third Arrest – 4 November 2014

42. Mr Howarth arrested a third UberX driver after 11pm on 4 November 2014 at Star City Casino in Pyrmont, about two kilometres west of Sydney’s Central Business District (CBD).

43. The following tweet had been posted on the @arrestinguber Twitter account at 12:45pm that day:

“Uber about to get a shock in Sydney! How many arrests can the [sic] cope with?”

44. The following day, a further tweet with an accompanying photo of Mr Howarth was posted:

“Uber staff – illegal UberX drivers – this is me – you break the law – I will arrest YOU – to date every arrest upheld!”

The Fourth Arrest – 10 November 2014

45. Mr Howarth arrested another UberX driver on 10 November 2014. On this occasion, a tweet appeared on the @arrestinguber Twitter account before the arrest:

“Ah dear Uber – I’m in another ILLEGAL UberX vehicle. Another arrest is imminent – he too has been LIED to! Tut tut Uber & I will not stop!”

46. A tweet was posted later from the @arrestinguber Twitter account with a photograph that purported to be “Arrest #4 pic”, with the comment: “good one for the media? Matter to proceed to court – more to come soon!”

47. This shows that at least part of the author’s intent was to gain media attention. Uber submits that Mr Howarth’s motivation was to injure Uber by seeking media attention, not to bring criminal proceedings against the persons he arrested. As will be seen Mr Howarth frequently involved the media in these arrests.

The Fifth Arrest – 10 November 2014

48. Mr Howarth arrested an UberX driver-partner later the same day. An additional tweet was posted along with a photograph on the @arrestinguber Twitter account to accompany this arrest:

“Police uphold arrest #5 – another court appearance coming up for Uber – SPIN & deny that @Uber – another driver LIED2”

The Sixth and Seventh Arrests – 13 November 2014

49. On 13 November 2014, Mr Howarth conducted his sixth UberX driver arrest. I infer this was part of the Arresting Uber campaign. Later that same day, he arrested another UberX driver-partner at Star City Casino, in what was the seventh arrest.

50. At 10:24pm that evening, Arresting Uber posted the following tweet:

“Just had the first resist – but force as was necessary to effect the legal arrest – more soon. Police en-route!”

51. The following morning, the @arrestinguber Twitter account tweeted photographs of Mr Howarth with the UberX driver at the time of that arrest:

At 6:30am: “First time a hands on approach was needed.”

At 6:31am: “Immediately after subdued – but the incredible thing was he blamed Uber – this man hopes I beat them!”

52. The first of these tweets featured a photograph of Mr Howarth with his right hand on the wrist of the driver. I infer from the photograph of Mr Howarth that he had placed the driver in a wrist hold of some kind. Mr Howarth’s left hand appears in the photograph to be holding the driver’s upper arm. Mr Howarth conceded in court to applying a wrist hold to prevent the driver from resisting the arrest. The driver is being held against his will. But Mr Howarth submitted that the force he applied was reasonable:

“…had he had resisted greater, the position I had him in there, the next step would have been to have actually have got his wrist and put him in a wrist lock. That wasn't necessary, so I used only the amount of force that was necessary and that only happened on one arrest that I did.”

53. This supports Uber’s submission that should Mr Howarth be permitted to continue arresting civilians in the manner he has in the past, this carries the potential risk of causing physical harm to others. It may also lead to other breaches of the peace should the drivers resist Mr Howarth.

The Eighth Arrest – 19 November 2014

54. On 19 November 2014, Mr Howarth used the Uber App to book a trip from the Sofitel Wentworth in Sydney’s CBD to Star City Casino. Mr Howarth admitted this arrest. He stated in court that he arrested the driver at the casino, once the driver had alighted from the car at the end of the journey.

55. Shortly afterwards, Arresting Uber posted a photograph of Mr Howarth speaking to police, with the statement:

“Let’s see how this story breaks. Arrest 8 & full media coverage! Arrest upheld – police action to follow – advice soon.”

56. This arrest was also captured on video. Fairfax Media broadcast the video footage as an accompaniment to a Sydney Morning Herald news article.

57. Uber tendered video footage obtained from YouTube, as proof of this arrest and as proof that Mr Howarth created and operated a YouTube channel entitled “Arresting Uber” (YouTube channel). The solicitor for Uber said, in evidence which was uncontested, that the YouTube channel footage was the same footage published by Fairfax Media.

58. It is apparent from the footage that Mr Howarth said to the driver “I’m placing you under citizen’s arrest, and that is because what you are doing is illegal”. Towards the end of the recorded footage, Mr Howarth says “it’s the Uber staff I’d be more interested in arresting”.

59. The tweets continued. On 25 November 2014, the @arrestinguber account posted the following tweets:

At 1:15am:

“Uber are not happy about this all…not happy one little bit…& know this @uber – I am merely warming up…time to ‘weaponise’”; and

At 11:32pm:

& by weapons YOU know what I mean – insurance, a licence and some bloody knowledge!”

60. On 26 November 2014, the following tweet was also posted:

“…know this Uber. I will not rest now til you are finished.”

61. It is not in dispute that Mr Howarth did not conduct any arrests or attempt to do so between December 2014 and early June 2015.

62. Uber tendered evidence of Apprehended Violence Order (APVO) interim orders made in the Local Court on 5 December 2014. These APVO orders were made to restrain Mr Howarth from assaulting, harassing or intimidating Mr David Rohrsheim and Glenn O’Sullivan. Mr Rohrsheim is the General Manager of the second plaintiff’s Sydney office and Mr O’Sullivan was Uber’s operations manager in Sydney. Uber says and it seems to be common ground that the APVO stayed in place until 9 June 2015.

The Ninth Arrest – 15 June 2015

63. On 15 June 2015, Mr Howarth arrested a ninth UberX driver-partner, Mr Dean Kremer. Mr Howarth requested an UberX ride via the Uber App. Mr Kremer responded and transported Mr Howarth to Sydney Airport, Domestic Terminal. Once Mr Kremer completed the ride, Mr Howarth informed him he was “under arrest”.

64. The @freespeaktweet Twitter account later posted the following tweet:

“Uber – sorry to advise – ARREST No 9 on an illegal uber driver just took place – all on camera – ABC covered it in full – A LOT MORE TO COME”

65. The arrest was captured in video footage filmed for the Australian Broadcasting Corporation (ABC) television program Lateline. It was broadcast by the ABC in an edited Lateline package which aired on 25 June 2015. The Lateline footage was tendered by the plaintiff without objection. This court has had the benefit of reviewing that footage. The material unequivocally shows Mr Howarth performing the ninth arrest and admitting to the arrest. Mr Howarth is recorded saying to Mr Kremer “I'm conducting a citizen's arrest”. He then says to Police: “I have effected an arrest”. The footage shows the driver co-operating in the arrest but not with any obvious enthusiasm for the predicament in which he had found himself.

66. Evidence produced by Uber of email inquiries sent by other UberX driver-partners to the second plaintiff around the time of the broadcast of the Lateline Program supported the plaintiffs’ submission and is a basis to infer, as I do, that Mr Howarth’s actions caused UberX drivers to feel concerned for their own safety.

67. Uber says Mr Howarth’s numerous media appearances and footage captured of Mr Howarth arresting drivers amounted to general admissions by Mr Howarth that he had effected or supervised 14 arrests between 16 October 2014 and 30 June 2015.

68. Mr Howarth did not contest that he was involved in each of nine arrests. He said on the first day of the trial: “I don't contest that I didn't arrest any of the first nine people”. Mr Howarth relies upon the Fairfax Media and Lateline video footage of the eighth and ninth arrests respectively in his submission that Uber’s driver-partners were operating contrary to Passenger Transport Act, s 37, as his reason for conducting the arrests.

Mr Howarth’s motivations

69. Mr Howarth sought media attention for his campaign against UberX. From the evidence tendered in the proceedings, it appears he was relatively successful in this endeavour. The solicitor for Uber tendered an exhibit to an affidavit in the proceedings without objection which contained videos which Uber’s solicitor said he had obtained from the YouTube channel titled “Arresting Uber”. In addition to the Fairfax Media footage and Lateline footage discussed above, the You Tube channel featured a ‘Studio 10’ segment aired on Channel 10 in which Mr Howarth was interviewed. He was described by the reporter on the Studio 10 program as a “wannabe vigilante”, in reference to his Arresting Uber campaign tactics. Mr Howarth says during this interview: “it’s fairly and squarely about Uber”.

70. In oral submissions, Mr Howarth said his motivations were to uphold the law and to promote public awareness of these issues. He submitted his arrests were predicated on criminal conduct by Uber or its drivers. Mr Howarth tried to distance himself from the “vigilante” trademark:

“I would suggest to you that there is no intention, desire or evidence that I have acted as a vigilante and I would caution you to consider the use of this word as bandied about particularly by the plaintiffs, because a vigilante infers that some punishment has been exacted. All I'm doing is merely delivering the people to be dealt with according to law.”

71. Mr Howarth’s motivations are analysed in greater detail below in relation to the elements of the plaintiff’s claim.

72. Between the eighth and ninth arrests, Mr Howarth appeared as a guest on radio programs to discuss the Arresting Uber campaign. On 24 November 2014, he was interviewed on the Radio 2UE Drive program with Justin Smith. Mr Howarth during the program said his intended target as a result of the arrests was Uber itself:

“…I’m a menace to Uber. I don’t consider myself a menace to anybody else…I think the clear target here is Uber. And Uber are the people breaking the law, I’m not breaking the law.”

73. Mr Howarth also appeared on the Triple J radio program ‘Hack’ on 1 December 2014, where he confirmed on air that he had arrested UberX drivers: “eight so far”.

74. On 30 June 2015, the @freespeaktweet Twitter account, under the name “Russell: Arresting U” posted the following tweet at 12:55pm:

“Oh dear – just booked an ILLEGAL uber x car & an arrest is imminent !!”

75. I infer from its timing that this tweet was posted in anticipation of the arrests which followed during an incident at Leichhardt Oval that day.

The Leichhardt Oval Incident – 30 June 2015

76. Uber contends that on 30 June 2015 a number of its driver-partners were lured to Leichhardt Oval where multiple citizen arrests took place by a group of people conducting a campaign against Uber, including Mr Howarth. Uber advances a number of sources of evidence from which it asks the Court to infer Mr Howarth was part of a concerted plan to arrest Uber drivers at Leichhardt Oval that day.

77. Uber called evidence from one of the drivers, Mr Dara Khodor. His evidence is a useful narrative starting point. The other evidentiary materials tendered in Uber’s case, the videos and text messages, show that Mr Khodor’s experience was part of a wider campaign against many Uber drivers.

78. But the story starts with Mr Khodor. I entirely accept his evidence. He was a compelling, direct and truthful witness who gave an internally consistent account of his experience of that day. His account is wholly consistent with the available video evidence of the day. Cross-examined by Mr Howarth, Mr Khodor was able to spontaneously call upon additional details from the scene he had already described, adding without hesitation more detail to his account. Mr Howarth challenged Mr Khodor’s credibility but that challenge wholly failed. The findings in this section about the events of 30 June 2015 at Leichhardt Oval are based on Mr Khodor’s evidence.

79. At about 12:45pm on 30 June 2015, when Mr Khodor was working as an Uber driver partner, he received a ride request from a mobile phone user for transport from Sydney’s CBD to Leichhardt Oval’s public parking area. He picked up the passenger and commenced driving to the destination. When he arrived at Leichhardt Oval the passenger asked him to open the boot of the car, so the passenger could retrieve his luggage. As Mr Khodor did that his car was surrounded by eight to 10 people. Those surrounding the vehicle included the defendant, Mr Howarth. Mr Khodor says, and I accept, Mr Howarth was “doing most of the talking and he was leading the group and directing the others”. Mr Howarth said to Mr Khodor “you are under arrest” and then added “we have called the police and you have to wait here until they come.”

80. When Mr Khodor got out of the vehicle he was surrounded by very aggressive people, screaming at him, “yelling” at him and he “didn’t know what was going on”. Mr Khodor does not exactly remember what they were screaming about. But he remembers snippets of what they said. They were calling out, “you are taking my food” and “you are driving an unregistered vehicle” and “what you are doing is illegal”. He also recalls being told along with the other drivers being detained by this group of men “you are under arrest because you are driving Uber”.

81. Mr Howarth’s questioning of Mr Khodor made it clear that Mr Howarth was not disputing that he was present on this occasion at Leichhardt Oval. Mr Howarth agrees he was speaking to a driver in front of Mr Khodor’s car.

82. Mr Khodor waited for 15 to 20 minutes. The police did not come. He was becoming very concerned. During the waiting period the people around his vehicle continued to scream, making him feel uncomfortable and scared. He said “it was scary” and the court could see that he meant it. The video also shows how intimidating this melee of arresting people must have been for the surrounded drivers at the Leichhardt Oval carpark. Mr Khodor said “I want to go. If you don’t have nothing to do with me, I want to go”. He really wanted to get away. But his pleas for his freedom attracted a firm counter-response from Mr Howarth: to subdue him by force.

83. The passenger that Mr Khodor had brought from the CBD to Leichhardt Oval turned to Mr Khodor and said “you are affecting my business. I have 32 taxis and I can’t get any drivers”.

84. The situation escalated while Mr Khodor waited for the police. Mr Khodor also said to Mr Howarth and the others surrounding him, “I want to leave. I don’t have all day”. He was genuinely upset. Mr Khodor then identified the first step taken to detain him: a man of South Asian appearance and a beard in about his mid-30s drove his van and parked it behind Mr Khodor’s vehicle, to block his exit. Mr Khodor challenged the van driver saying, “you can’t do that you’re not the police”. Then the second step occurred: Mr Howarth intervened and forcibly grabbed Mr Khodor’s left arm and twisted it. Mr Howarth said to him “you are under arrest and you cannot move”. Mr Khodor responded “take your hands off me you are not allowed to do this”. This situation could have escalated into greater violence had one of the other drivers intervened to help Mr Khodor at this point.

85. Mr Howarth did not let go of Mr Khodor’s arm. As a result, I accept that Mr Khodor felt pain in his arm. He was very scared. Mr Khodor saw Mr Howarth as the leader of the group of aggressive taxi drivers, and I accept that Mr Howarth took that role, consistent with his leading role in the Arresting Uber campaign.

86. Mr Howarth challenged Mr Khodor’s account that he was fearful during the Leichhardt Oval incident. But I fully accept Mr Khodor’s evidence of his fear. The video of the event shows how aggressive and chaotic was this situation on this day. There was still a noticeable tremor in Mr Khodor’s voice, as he gave his account in court of his experience in the period between his arrest and the arrival of the police. It was quite evident listening to Mr Khodor that the events of that day at Leichhardt Oval triggered very negative memories to him of being some kind of hostage for a cause he did not understand. Perhaps such a reaction on his part is not surprising. I accept the whole incident reminded Mr Khodor of very traumatic events in Iraq, his country of birth, from which he had emigrated to Australia.

87. Mr Howarth actually physically held Mr Khodor by the arm in some kind of wrist lock for the period until the police arrived. I infer that it was necessary for Mr Howarth to do this because it was clear to Mr Howarth that Mr Khodor was so keen to leave that if he let Mr Khodor go he would indeed leave. This shows how terrified Mr Khodor really was.

88. One of Mr Howarth’s associates at Leichhardt Oval said to Mr Khodor while he was being detained, “there is about 200 people outside, even if you run away they will stop you”. So Mr Khodor did not run away in the end. I accept that Mr Khodor was afraid and thought that if he tried to make his way out and actually got outside he might be assaulted by the people said to be out there.

89. Finally the police arrived. They separated the arrested drivers from the group detaining them. The police checked Mr Khodor’s licence. After about 15 to 20 minutes they told him that he was free to go.

90. This experience has badly affected Mr Khodor’s attitude to Uber. He felt that “Uber is a good company and I still prefer to work with Uber”. But because of his experience he declared “I’m unsure about continuing to work using the Uber software application”. Mr Khodor explained, “I am scared that something like this will happen again” and he did “not feel safe”. Mr Khodor did not work for Uber as a driver for a period of three or four weeks after the Leichhardt Oval incident.

91. Tweets about the Leichardt Oval incident immediately abounded. Mr Howarth and/or his associates posted tweets from the ‘@freespeaktweet’ Twitter account about the events earlier that day:

At 2:06pm:

“Oh dear – uber – we just did 5 – yes FIVE ARRESTS AT THE SAME TIME & same location !! All filmed by ABC news :) RT this one hard – later 10”

At 3:42pm:

“MASSIVE NEWS. 5 uber driver drivers [sic] arrested by taxi drivers under my supervision – tonight I’m doing 10. YES TEN !!! RT THIS HARD ;) #ubered”; and

At 3:47pm:

“This massive five arrests was a huge success. We are doing ten a day unless the govt stops this illegal conduct…”

92. Mr Howarth denied being the tweeter. He may not have composed them and issued them himself but in my view they were sent out with his knowledge and approval. Mr Howarth was a leading figure of the Arresting Uber campaign. He was leading and organising other drivers on this day. The tweets came from someone, such as Mr Howarth who was responsible for organising the campaign. These tweets served the purpose of the campaign, which was in part to publicise the Arresting Uber cause. There is no evidence that Mr Howarth ever sought to distance himself from these tweets.

93. The events of Leichhardt Oval on 30 June 2015 would in the Court’s view on their own be quite sufficient for this court to grant the relief that Uber seeks. This was a terrifying incident for all the drivers involved. I infer from Mr Khodor’s experience of being captured at the site that other drivers involved were also likely to have been terrified.

Interlocutory restraint

94. Mr Howarth did not perform the additional arrests foreshadowed in the tweets of 30 June. On 1 July 2015, Justice Brereton, sitting in the Duty List granted Uber an interim injunction restraining Mr Howarth, including by his servants and agents from arresting, attempting to arrest or threatening to arrest any user of the Uber App or any officer of Uber. This stopped the arrests. But as will be seen, the intimidation and harassment continued.

“Games of Thrones” edited video clip

95. After the Leichhardt Oval incident, the Arresting Uber campaign took an even more theatrical turn. Someone involved in the campaign undertook the technical work necessary to modify a film sequence from an episode of the fantasy television series ‘Game of Thrones’. The modified version featured Mr Howarth and parts of the Arresting Uber campaign. It was uploaded to the YouTube channel.

96. The court has viewed the sequence, entitled ‘Games of Thrones versus Uber’. It features an introduction in which Mr Howarth speaks and which has been edited into the original film to overlay the opening Game of Thrones credits. In the introduction, Mr Howarth says:

“Hi there. I hope you like my satirical, theatrical adaptation courtesy of Game of Thrones and Uber. I’ve arrested nine illegal UberX drivers; supervised five arrests in one operation. Why, you ask? Globally, drivers are at breaking point…Uber must be stopped.”

97. Mr Howarth denies he is responsible for preparing the second segment of the video which follows his introduction. Nevertheless, I infer from statements Mr Howarth made in his introduction and from his statements in court regarding his familiarity with the film clip that Mr Howarth was at least aware of and consented to its production. Mr Howarth’s self-professed leading role in the Uber campaign and his claims of responsibility for the video “my…adaptation” shows a degree of authorship. His piece-to-camera shows his approval of the rest in which it is embedded. It can be inferred from its content that he contributed to its creation, and approved its production by an Arresting Uber campaign supporter.

98. I am persuaded Mr Howarth considers himself a champion of this cause. Throughout the clip, the symbolic footage depicts slaves being liberated from the shackles of their masters by Mr Howarth and characters representing his associates. The sequence is peppered with subtitles relating to the Arresting Uber cause and alternative ride-sharing services to UberX. Images of faces superimposed upon the Game of Thrones characters attempt to paint the picture of Uber executives, politicians and supporters assuming the position of masters, seemingly enslaving a population of UberX drivers.

99. Relevantly, in the course of the footage, an image of Mr Howarth’s face is also superimposed upon the male ‘champion’ in the footage, who helps to defeat the masters and liberate the masses of slaves from the throes of UberX, so that they may join the likes of ONTAP and other UberX competitors. The ONTAP logo is emblazoned across the crowd of free men on two occasions. The character leading the cause against Uber states: “I bring Uber what they deserve”. The clip ends with a call to action to follow @freespeaktweet on Twitter and to connect to Mr Howarth on LinkedIn, before it fades out to the statement “don’t be a slave to Uber”.

100. The Game of Thrones video has not in evidence ever been disclaimed by Mr Howarth. It connects him to one of the twitter accounts and shows an attitude that he believes he is conducting a revolution against Uber.

Mr Howarth Harasses Uber Drivers

An Incident on the Anzac Bridge – 7 August 2015

101. The Anzac Bridge spans Johnstons Bay, between Pyrmont and Glebe Island to the west of the Sydney CBD. Its four lanes in each direction comprise the principal vehicular route connecting the CBD with Balmain, Gladesville and Victoria Road. The account in this section records the court’s findings of events involving Mr Howarth that took place on the night of 7 August 2015 on that bridge. It is based on the evidence of Mr Peter Irvine, which I wholly accept.

102. On 7 August 2015 Mr Peter Irvine, then an Uber driver received a ride request on the Uber App for several persons seeking transportation from the suburb of Eastwood to the Sydney CBD. He arrived at the Eastwood pickup point and collected two male passengers, who both sat in the back seat of the car.

103. At about 10pm he reached the Anzac Bridge. Driving towards the CBD, he noticed a red Tesla motor vehicle driving very close behind him. The Tesla aggressively approached him in a bridge lane on his passenger side (or nearside) as Mr Irvine said “at very close range”, and “within about a foot”. The driver of the Tesla stared at Mr Irvine for 10 to 15 seconds and continued to follow him. Mr Irvine was sufficiently worried by this that he asked his passengers to check the red Tesla’s registration number. Mr Irvine soon saw himself that the vehicle’s registration number was “ONTAP1”. The red Tesla drove on the nearside of Mr Irvine’s car a number of times and its driver continued to stare at him. Mr Irvine felt intimidated and nervous. He was frightened that the Tesla driver was going to do something to hurt him. He even reached a provisional conclusion that the Tesla driver might, as he said, be “mentally disturbed”. These events were all the more frightening for Mr Irvine because there was little other traffic about on Anzac Bridge that night.

104. The Tesla driver unnerved Mr Irvine, so much that after leaving the Anzac Bridge and approaching the CBD Mr Irvine chose what was for him an unconventional route into the city, given his CBD destination. Mr Irvine wanted to shake the Tesla driver off. His logical route for his passengers from Eastwood into the city was to go straight ahead, off the freeway into Bathurst Street. Instead, out of fear, he took the freeway fork to the left, to give him an escape route across the Sydney Harbour Bridge. He thought that this choice of route would give him the option of a get-away route from the Tesla, should he need to. I accept Mr Irvine’s account that he took this unconventional route because of fear that the Tesla driver might follow him and do something unpredictable to him. That he was going through such mental calculations at this stage of his journey says much about how deeply the incident was affecting him.

105. In the end Mr Irvine stopped where the intersection of the Western Distributor freeway crosses Sussex Street and becomes King Street. He intended to turn right into Sussex Street South and from there to turn left into Bathurst Street, to deposit his passengers in the CBD. When he stopped at the Sussex Street South intersection the Tesla driver pulled up next to him and pulled his window down. Mr Irvine also lowered his window. Mr Irvine said “Are you right mate?” to the driver, as he explained in the sense of “Why are you menacing me this way?” All that the Tesla driver said back was “But are you right mate?” This was all so genuinely strange that Mr Irvine was not just confused at this point; he was, as he said, “fearful that something bad was going to happen”. Mr Irvine made clear under questioning, and I accept, that the tone in which the Tesla driver had asked this question was aggressive, menacing and intimidating. The Tesla driver’s question was a question posed neither in reassurance nor in support.

106. Mr Irvine identified the Tesla driver as Mr Howarth. Mr Howarth readily conceded the identification and accepted in the course of his questioning of Mr Irvine that he, Mr Howarth, was indeed the red Tesla driver on the Anzac Bridge on the night of 7 August 2015. This was not thereafter in contest.

107. After the brief exchange at the corner of King and Sussex Streets Mr Irvine drove down Sussex Street, turned left into Bathurst Street and then right into George Street. He deposited his two passengers at the World Square building in George Street. Throughout this journey he saw the red Tesla following him closely and often sitting in Mr Irvine’s “blind spot”. The Tesla stopped behind him outside World Square with its hazard lights on. Mr Irvine was nervous and very frightened of this, as Mr Howarth was continuing to stalk him. I accept his evidence that he “didn’t know what to do” at this point.

108. Mr Irvine’s intimidation continued. He was worried for the safety of his passengers. He said to them “get out and run”. After depositing his passengers Mr Irvine drove straight off, trying to put distance between himself and Mr Howarth’s vehicle. But the red Tesla continued to follow him, pulling up again on Mr Irvine’s passengerside. Mr Irvine lowered his window out of what he described as a combination of being terrified and being angry and “wanting some sort of answer”. Through an open window Mr Howarth then called out to Mr Irvine “Your car will be seized on Tuesday.” Mr Irvine felt by this time that he “had had enough of this” and resolved to report the matter to the police as soon as possible. But Mr Howarth continued to focus his unwanted attentions on Mr Irvine, saying “Don’t you know who I am?” Mr Irvine, who genuinely up until then had not heard of Mr Howarth’s campaign against Uber, responded “No”. Mr Howarth continued: “Haven’t you heard of Arresting Uber?” Mr Irvine again responded “No”.

109. Mr Irvine raised his window. He drove to the Day Street Police Station and reported the incident then and there and later to UberX.

110. I accept Mr Irvine’s evidence that the incident greatly disturbed him and has since made him nervous about driving, using the Uber App. He says, and I accept as a genuine expression of his thoughts on the subject, “I do not want to encounter the driver of the red Tesla again. I found his behaviour menacing and dangerous”.

111. Mr Irvine was an excellent witness. I accept all his evidence. No part of it is in doubt. His recollection of the detail of his encounter late that evening with Mr Howarth was surprisingly clear even 18 months later. Mr Irvine answered every one of Mr Howard’s challenges to Mr Irvine’s account of events that evening by continually drawing upon more and more details of his recollection of the events of the evening.

112. Mr Howarth’s vigorous cross-examination of Mr Irvine clearly brought back to Mr Irvine disturbing recollections, while he was in the witness box giving his account of that evening. Mr Irvine’s account that he found the evening a frightening one is wholly believable and I accept it.

113. Mr Howarth seemed curiously indifferent to Mr Irvine’s fears. Both in his manner of questioning and in his attitude to the issue in submissions, Mr Howarth made clear that he was not prepared to recognise that Mr Irvine had the genuine fears that he claimed. Mr Howarth’s demonstrable lack of empathy for Mr Irvine and lack of recognition that this was a terrifying experience for Mr Irvine are troubling. And they cause the court to infer that Mr Howarth is a person who has few inhibitions preventing him from acting on his beliefs in a way that may be quite frightening and distressing to others. This assessment of Mr Howarth is one of the reasons the court regards a permanent injunction as necessary here.

114. But Mr Howarth’s cross-examination sought to contradict very little of Mr Irvine’s account of this night. The court warned Mr Howarth of the need to use his cross examination to challenge the evidence of Mr Irvine with which he disagreed. Mr Howarth just said in response to the court, “I’ve got it in my mind. I know where I’m going.” Despite that Mr Howarth did not expressly put to Mr Irvine that he did not feel menaced. When Mr Howarth put to Mr Irvine that he was not so terrified that he decided to call triple zero, Mr Irvine replied with an explanation I fully accept, that he was “more worried about looking out the windscreen”.

115. Both the way Mr Howarth conducted himself on the night of 7 August 2015 and the way in the court room he discounted Mr Irvine’s genuinely fearful reaction to the events of that night are a sound basis to infer, as I do, that when pursuing a cause such as his present campaign against Uber that Mr Howarth is quite indifferent to any anxiety that might be felt by individual drivers whom he encounters as part of the campaign.

116. Mr Irvine was still visibly shaken at court by the events of that night. Mr Howarth terrorised him. This incident is in my view quite sufficient on its own for the Court to grant the relief that Uber seeks in these proceedings.

Undertaking to the Court

117. On 7 October 2015, the matter came before the court. Sackar J noted on that occasion that Mr Howarth had undertaken to the court (without admissions) whether by himself or by his servants or agents not to arrest, attempt to arrest or threaten to arrest any user of the Uber App or any officer of the plaintiffs up to 31 October 2015. This undertaking to the court, extended until further order, remains in effect, subject to the judgment and orders made herein.

The Parties Make Open Offers

118. Uber made an open offer to Mr Howarth to settle the proceedings on 24 December 2016 on terms that would require that Mr Howarth be restrained for three years from arresting or attempting to arrest or threatening to arrest users of the Uber App or officers or employees of Uber in New South Wales. Mr Howarth rejected this offer the following day, Christmas Day. On 25 December 2016 Mr Howarth and Mr Hanna continued exchanges about these proceedings, without reaching any satisfactory solution.

119. During the trial, Mr Howarth made two open counter-offers to Uber in response to its initial offer of a three-year restraint on Mr Howarth. Mr Howarth in counter-offers stipulated for additional terms, framed as alternatives (Exhibit 1 and Exhibit 2 respectively). Neither alternative was agreeable to Uber. Nothing turns on the contents of these various offers and counter-offers.

120. Upon these findings the court must consider whether the relief Uber seeks should be granted.

Analysis of the Plaintiff’s Claim

The Tort of Intimidation and the Civilian Power of Arrest

121. Uber contends that on these facts Mr Howarth has engaged in the tort of intimidation. The elements of the tort may be shortly stated. In Sid Ross Agency Pty Limited v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760 (“Sid Ross”) at 766E-F, Mason JA (Jacobs and Holmes JJA agreeing) identified the elements of the tort in the following terms:

“… If A, intending to injure C, by threatening B that he will commit an unlawful act as against B, unless B refrains from exercising his right to deal with C, induces B to refrain from so doing, A commits a wrong actionable at the suit of C”.

122. The Victorian Court of Appeal recently approved this statement in Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2014) 45 VR 571; [2014] VSCA 348 at [37]:

“[37]   In our view, the respondents’ submissions should be accepted.  None of the matters relied on by the appellant casts doubt on the correctness of the decision in Sid Ross,[36] which recognised the tort of intimidation as part of the common law of Australia. ”(footnote omitted)

123. The elements of the tort therefore can be identified as follows:

1. A intends to injure C;

2. A gives effect to his intention by threatening B that A will commit an unlawful act as against B;

3. The unlawful act is threatened, unless B refrains from exercising his legal right to deal with C; and

4. B is thereby induced to refrain from exercising his legal right to deal with C.

124. If all these elements are made out, A commits an actionable wrong at the suit of C. Each of these elements is analysed below in light of the court’s findings in the factual narrative above.

125. The first question to be analysed is whether Mr Howarth committed the tort of intimidation. Then, when the issue of the grant of an injunction under Supreme Court Act 1970 (NSW), s 66 or on the court’s auxiliary jurisdiction is examined, the analysis is whether such tortious conduct is threatened to continue, if an injunction were not granted.

126. In my view all four elements of the tort are made out here. Element (b) was the subject of the closest attention in submissions and is considered here first, followed by elements (a), (c) and (d).

127. Element (b) is the commission of an “unlawful act”. The unlawful act alleged against Mr Howarth is his assault (either by the threat of, or the execution of, physical violence against Uber drivers and staff) and the false imprisonment of those persons, which Uber says occurred each time that Mr Howarth executed a citizen’s arrest.

128. Uber contends that Mr Howarth’s arrests were unlawful for two principal reasons. First, the arrests were unnecessary. Secondly, Uber submits they were made for an unlawful purpose, namely causing injury to Uber.

129. Uber contends, and I accept, that it is not necessary for the court to decide whether Uber drivers were committing an offence under the Passenger Transport Act at the time that Mr Howarth performed his citizen’s arrests. Uber submits and I accept as correct that even if the Uber drivers were committing an offence that Mr Howarth’s arrests were “unlawful” for the purposes of assessing whether or not Mr Howarth committed the tort of intimidation. Not every contravention of the law that a citizen witnesses, will authorise the conduct of a citizen’s arrest.

130. Some of Mr Howarth’s conduct of which Uber complains did not involve the making of citizen’s arrests but was in the nature of menacing or harassing behaviour. This will be dealt with separately. But the core and most frequent conduct complained of comprises an often repeated pattern of sequential events. Mr Howarth uses the Uber platform to call an Uber driver; when the Uber driver arrives Mr Howarth gets in the car and directs the driver to the destination; in the course of the journey Mr Howarth reveals that he regards Uber’s behaviour and the driver’s behaviour as a contravention of the Passenger Transport Act; Mr Howarth, at the destination, performs a claimed citizen’s arrest on the driver; Mr Howarth then calls the police to commit the Uber driver to police authority. Sometimes Mr Howarth is alone, sometimes in the company of others, including media organisations Mr Howarth has invited to film the arrests.

131. The power to make a citizen’s arrest is confirmed in the Law Enforcement (Powers and Responsibilities) Act 2002 (“the LEPRA”) in this state. LEPRA, s 100 provides as follows:

“100 Power of other persons to arrest without warrant

(cf Crimes Act 1900, s 352)

(1)   A person (other than a police officer) may, without a warrant, arrest a person if:

(a)   the person is in the act of committing an offence under any Act or statutory instrument, or

(b)   the person has just committed any such offence, or

(c)   the person has committed a serious indictable offence for which the person has not been tried.

(2)   A person who arrests another person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.”

132. Neither Mr Howarth nor Uber contended that a breach of the Passenger Transport Act was a “serious indictable offence”. The court’s focus is therefore on LEPRA, s 100(1)(a) and (b). At the time the arrests were undertaken, Mr Howarth’s view was that the drivers were contravening Passenger Transport Act, s 37, which creates a summary offence punishable by a fine not exceeding $110,000: see the Passenger Transport Act, ss 37 and 60. The Passenger Transport Act also declares a s 37 offence to be a penalty notice offence (see s 59) for which the prescribed penalty is $1000: Passenger Transport Regulation 2007, cl217.

133. The tort of intimidation requires the defendant to threaten the commission of an “unlawful act”. The expression “unlawfully” relevantly means forbidden by some definite law: see R v Clarence (1888) 22 QBD 23, per Stephen J. Here the relevant acts of unlawfulness relied upon are the commission of assaults by threats of violence or the holding of the body of the Uber drivers and false imprisonment. Conduct of both these categories could be unlawful in the relevant sense. A proven assault is a criminal act: Crimes Act 1900, s 61. False imprisonment is reflected in various ways in the Crimes Act, including through the criminal offence of detaining a person for advantage: Crimes Act, s 86.

132. Uber bears the onus of proof of the element of unlawfulness in the tort of intimidation. But Uber would sufficiently discharge its evidentiary onus by proving acts that constituted either an assault or false imprisonment. In my view, on the court’s above findings Uber has done this. The evidentiary onus then shifts to the defendant Mr Howarth to justify the act as being lawful.

133. Mr Howarth did not, in my view, justify his conduct towards the various Uber drivers in question as lawful and therefore incapable of constituting the tort of intimidation.

134. Mr Howarth fails in his attempted reliance on LEPRA, s 100 for two principal reasons: (1) Mr Howarth has not established that he exercised the power of arrest in circumstances in which it was necessary; and (2) he did not exercise the power of arrest for the purposes of commencing criminal proceedings. The court will deal with each of these requirements in turn.

135. Were the Arrests Necessary? The power of arrest is reserved for situations in which its exercise is necessary. This limit upon the power of arrest has been described as one in which the power should only be used as a “last resort”: Director of Public Prosecutions (NSW) v Mathews – Hunter (2014) 242 A Crim R 319; [2014] NSWSC 843 (at [25]) per Fullerton J.

136. LEPRA, s 100 is in similar terms to its predecessor, Crimes Act, s 352(1) which provided as follows:

“352.   Person in act of committing or having committed offence

1.   Any constable or other person may without warrant apprehend,

(a)   any person in the act of committing, or immediately after having committed, an offence punishable, whether by indictment, or on summary conviction, under any Act,

(b)   any person who has committed a serious indictable offence for which the person has not been tried,

and take the person, and any property found upon the person, before an authorised Justice to be dealt with according to law.”

139. Authority has constantly emphasised in relation to provisions such as Crimes Act, s 352 and LEPRA, s 100 that more is required than just the arresting party being satisfied as to the commission of an offence. In Director of Public Prosecutions (NSW) v Carr [2002] 127 A Crim. R. 151; [2002] NSWSC 194 at 159 [at 35] Smart AJ said:

“35.   This Court in its appellate and trial divisions has been emphasising for many years that it is inappropriate for powers of arrest to be used for minor offences where the defendant’s name and address are known, there is no risk of him departing and there is no reason to believe that a summons will not be effective. Arrest is an additional punishment involving deprivation of freedom and frequently ignominy and fear. The consequences of the employment of the power of arrest unnecessarily and inappropriately and instead of issuing a summons are often anger on the part of the person arrested and an escalation of the situation leading to the person resisting arrest and assaulting the police. The pattern in this case is all too familiar. It is time that the statements of this Court were heeded.’”

140. There are other examples of repetition of this expression of principle. Barr J said, for example, in Director of Public Prosecutions v CAD [2003] NSWSC196 at [7] as follows:

“[7]   The law about the arrest of and the commencement of criminal proceedings against persons, especially children, for minor offences is uncontroversial. Arrest should be reserved for circumstances in which it is clearly necessary: Lake v Dobson Supreme Court of New South Wales, Court of Appeal, 19 December 1980 unreported. It is inappropriate to arrest when service of a summons will suffice: Fleet v District Court [1999] NSWCA 363. It is inappropriate for powers of arrest to be used for minor offences where the defendant’s name and address are known, where there is no risk of his departing and where there is no reason to believe that the summons will not be effective: Daemar v Corporate Affairs Commission Supreme Court of New South Wales, Court of Appeal, 4 September 1990 unreported; Director of Public Prosecutions v Carr [2002] NSWSC 194.”

141. The requirement of necessity has been stated as part of a “fundamental approach” to the exercise of these powers: see Director of Public Proescutions (NSW) v AM (2006) 161 A Crim R 219; [2006] NSWSC 348 at [21] (Hall J) and Fleet v District Court of NSW [1999] NSWCA 363 at [73] – [74].

142. DPP v Mathews-Hunter [2014] NSWSC 843 is a useful example of the application of the doctrine of necessity in arrests relevant to the circumstances of this case. A transit officer purported to perform a citizen’s arrest in respect of a graffiti offence. There was no evidence to suggest that if the transport officer obtained and provided the offender’s details and passed them on to police that that would not be an effective way of dealing with the offence. Fullerton J found that the purported citizen’s arrest was therefore unlawful in the circumstances: at [52].

143. The result in DPP v Mathews-Hunter is consistent with the law’s general control of the exercise of statutory discretionary powers, to ensure their reasonable exercise. “When a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised”: Kruger v The Commonwealth of Australia (1997) 190 CLR 1 at 36; [1997] HCA 27; see also Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [126] (Gummow J) and Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 at [116].

144. Mr Howarth contended that his arrests were necessary. Although he did not give evidence, it was put to him in final submissions that he could easily have passed the vehicle registration details of the Uber drivers onto the police together with a short statement about his own engagement of the Uber platform and his travel with the driver. All of this should have been quite sufficient to identify the driver, especially if Mr Howarth had also taken photographs of the drivers as he often did.

145. Mr Howarth resisted this conclusion. He submitted that had he not intervened that it would not have been possible later on to identify the driver.

146. This explanation is not persuasive. The evidence already shows Mr Howarth able to use his mobile phone or other mobile device, to take videos of the Uber drivers with whom he was travelling, to ask them questions for them to make admissions, and for them to be identified by name or by appearance on video. There is not the slightest difficulty in the modern digital age in being able to identify these drivers. Mr Howarth has already shown himself ready to utilise such technology to the full. Moreover in some cases the drivers co-operated to identify themselves, including by giving over their driver’s licences at the time of their arrest.

147. Private prosecution by Summons without arrest was also open to Mr Howarth. For him to take that course he would face the problem of identifying the drivers. But some drivers were quite prepared to provide their identification details and this would have enabled such a prosecution. Because of that common co-operative response, reason suggests that such a request should always be made and responded to before the exercise of the power of arrest is even contemplated. The course of Mr Howarth’s citizen’s arrests is quite different: he rarely seeks for drivers to identify themselves before launching into their physical restraint.

148. Necessity is judged by the circumstances. An important relevant circumstance is the nature of the offence. The Court will more readily conclude that an arrest was unnecessary where the offence in question is a summary offence punishable only by fine: DPP v Carr [2002] 127 A Crim. R. 151 at [35]. That is the case here. The necessity for arrests in these circumstances is not obvious.

149. Were the Arrests to Commence Criminal Proceedings. High authority holds that the only lawful purpose of an arrest is to commence proceedings for an offence: Foster v R (1993) 67 ALJR 550; [1993] HCA 80. Arrests made for other purposes are held unlawful: an arrest is unlawful where there is no intention to charge: Dowse v State of NSW [2012] NSWCA 337 at [26] – [27] (Basten JA); an arrest only for investigative purposes: R v Dungay (2001) 126 A Crim R 216; [2001] NSWCCA 443; and, an arrest only for the purposes of questioning (Williams v R (1986) 161 CLR 278 at 305).

150. LEPRA, s 100(2) supports the requirement for the power to be exercised for the purposes of commencing criminal proceedings, because the person who has been arrested must be taken before an “authorised officer”, as soon as reasonably practicable.

151. Mr Howarth says in submissions he performed the arrests to commence criminal proceedings. But he has not given evidence as to his intent. He elected not to go into evidence. Therefore the Court is left to assess his intent by reference to the objective circumstances. Uber submits that Mr Howarth did not exercise his citizen powers of arrest for the purposes of commencing criminal proceedings but rather just to injure Uber.

152. Mr Howarth’s submissions are not persuasive on this issue. Harming Uber was undoubtedly one of Mr Howarth’s dominant motives. But his motivation for his conduct was complicated. The pre-warning of the news media for some arrests, the theatrical and exaggerated conduct of some of the arrests, the filming of these arrests, the use of physical force where it was not obviously needed, together with the posting of videos on the internet, were all designed to attract the maximum publicity that Mr Howarth could achieve to Uber’s conduct. Mr Howarth’s ultimate purpose was in my view to stop Uber’s business by whatever means were at his disposal. By publicising Uber’s conduct he hoped to prevent Uber from continuing to operate. He had personally reached a conviction that Uber was in breach of the law and must be stopped. He was not content to wait.

153. In my view he was quite prepared to continue his arrests even if there were no serious prospect of criminal proceedings being commenced, even if the authorities failed to listen to him, and even if authorities took a different view of the law to what he did. His view was that with or without police acting on his contentions of Uber’s contravention he would continue arrests anyway. This is evident at least from the fact that no police prosecutions were brought yet he continued his campaign of arrests. His reason for acting thus was, as his many statements in court show, he was of the view that Uber intended to operate outside the law and he thought that Uber should be stopped by whatever means were readily available to him. In my view that was his dominant motive.

154. But he did have a subsidiary motive. His subsidiary motive was to engage the machinery of justice as far as he could to publicise his cause and cause embarrassment to Uber. His repeated calling of the police to the scene of his citizen’s arrests was designed to engage the processes of investigation and criminal prosecution that might ultimately lead to the conviction of an Uber driver. If that happened, it might bring even more publicity to Mr Howarth’s cause. That in my view is why Mr Howarth was interested in attracting the criminal processes to Uber’s conduct, not because he was particularly interested in a conviction of one of the drivers.

155. Mr Howarth would have been quite pleased with a criminal prosecution as one of the outcomes of his referral of Uber drivers to the police. But this in my view was a case of mixed motives, the dominant motive was doing whatever it took to cause discomfort for Uber’s business. The subsidiary motive was to achieve that by increasing the likelihood of a criminal prosecution by referring the Uber drivers the subject of the civilian arrest to the police, but principally to gain publicity to his cause rather than to actually initiate a prosecution.

156. In my view for these reasons Mr Howarth did not exercise his citizen’s right of arrest for the purpose of commencing criminal proceedings and as a result his arrests remained unlawful.

The Other Elements of the Tort – Elements (a), (c) and (d)

157. Elements (a), (c) and (d) of the tort of intimidation are also made out in the circumstances of this case.

158. As to element (a), the discussion above about Mr Howarth’s dominant and subsidiary motives makes clear that the intent to harm Uber was a dominant part of Mr Howarth’s purposes. But that inference is strengthened by an additional financial theme. Mr Howarth is associated with an application called “ONTAP” which competes with Uber. In the Game of Thrones video ONTAP is mentioned and that video can be seen as not only an attack on Uber but promoting ONTAP as a desirable alternative. The court has already found that Mr Howarth has approved the content of the Game of Thrones video by consenting to his introduction to it. He is also promoting ONTAP. The Tesla car that he admits driving on 7 August has the numberplates “ONTAP”. He clearly regards it as in his own interests to promote ONTAP by driving the vehicle.

159. ONTAP Technologies Pty Limited is the owner of the competing ONTAP business. Mr Howarth does not have a direct stake in ONTAP Technologies. But Larissa Cipas, Mr Howarth’s wife is the sole director, secretary and shareholder of ONTAP. Presumably he cannot own any direct interest in ONTAP because of his bankruptcy. He is clearly involved in promoting a company, in which his family has an interest, and the interests of which would be likely to be advanced were Uber damaged.

160. But the content of the tweets from @arrestinguber also support the inference that the Arresting Uber campaign is directed at damaging Uber as a business. The court has already found that Mr Howarth is the leader of that campaign and he knows and approves the tweets that are being issued pursuant to that campaign, whether he has created them himself or not. These tweets certainly evidence intent to harm Uber and reveal Mr Howarth’s state of mind.

161. Here are some examples. They are not exhaustive but they give a flavour of the material. On 14 October 2014 @arrestinguber tweets to Rupert Murdoch and others “R U going to come to the upcoming Uber staff arrests? Will it affect investor confidence?”, clearly implying that Uber will suffer from a loss of investor confidence from these staff arrests. I infer from this that Mr Howarth is supporting a campaign in which the intention is to harm Uber and that reflects his intention in effecting the arrests and the other acts of harassment that the court has found.

162. Again on 1 November 2014 a tweet is issued by @arrestinguber “whilst watching the Apprentice I have had a brainwave to seriously hurt Uber – give me a few days… absolute KILLER!” There could be no real doubt about the intent “to seriously hurt Uber”. This is a campaign which Mr Howarth proudly leads and for which it may be inferred he knows and approves of the tweets issued in support of it.

163. The @arrestinguber tweets also suggest the idea that Uber will not be able to cope as an organisation with the campaign, another basis to infer that the campaign organisers are trying to harm Uber. One example of this is on 4 November 2014: “Uber about to get a shock in Sydney! How many arrests can the [sic] cope with?”

164. Finally, another example of the same genre on 26 November 2014 was a tweet from @arrestinguber:

“Really interesting insider info – Uber are actually afraid of us & are thinking to pull UberX totally before I kill them… Weak! HA! I dare”

165. Even if this tweet is not issued by Mr Howarth, it is part of the campaign which he leads and which I infer was issued with his knowledge and approval. It is probable that this, and the other tweets in the first person, are tweets created under the direct authority of Mr Howarth, because they seem to be speaking from the leadership perspective which he holds in controlling the Arresting Uber campaign.

166. I infer from all of this material that element (a) of the tort of intimidation is made out and that the defendant had at all relevant times an intent to injure Uber.

167. Elements (c) and (d) of the tort are also made out. Most of the arrests, the Leichhardt Oval incident on 30 June 2015 and the harassment of Mr Irvine on 7 August 2015, contained a direct implication to the persons arrested or threatened that unless they refrain from driving for Uber they will continue to suffer the risk of arrest or further harassment by Mr Howarth. In almost every case this is implicit. In some cases, as the court’s findings show, it is explicit.

168. The threat has been effective. Both Mr Irvine and Mr Khodor have been deterred at least temporarily from acting for Uber. That is enough to show the tort is made out. But apart from that the drivers who can be seen in the videos of the other arrests look distinctly uncomfortable. It takes little to infer from the objective accounts of these arrests that they too have been induced to no longer deal with Uber. Indeed Mr Howarth is explicit that that is what he is seeking to persuade them to do, so he hardly has a viable answer to element (c). But as to element (d) I infer that all the drivers the subject of the arrests are likely to be hesitant to refrain from exercising their legal rights to deal with Uber. This follows from the overtly physical and threatening nature of Mr Howarth’s conduct towards them. Element (d) of the tort is also made out.

The Applicable Legislation

169. Mr Howarth says that the arrests he undertook were justified because Uber and Uber’s drivers have been operating in contravention of the Passenger Transport Act and the regulations made thereunder. Uber submits that there is no evidence that it or any of its drivers contravened the Passenger Transport Act or regulations at any time.

170. The events the subject of these proceedings are said to have taken place between October 2014 and June 2016. But most of the principal alleged acts of arrest or intimidation occurred before December 2015. The Summons in these proceedings was filed on 1 July 2015 and the Statement of Claim on 27 July 2015.

171. The regulatory structure governing the hiring of private motor vehicles to the public in New South Wales was altered on 18 December 2015, upon the introduction on that date of the Passenger Transport Amendment (Taxis and Hire Cars) Regulation 2015 (NSW) (“the 2015 Regulation”). To analyse the plaintiff’s allegations of contravention of the Passenger Transport Act and regulations it is necessary to examine the structure of the legislation and the regulations, both before and after 18 December 2015.

172. The Passenger Transport Act, s 37 relevantly provides:

“37 Private hire vehicle service requirements

(1) A person who carries on a private hire vehicle service, being a service operating wholly or partly within New South Wales, by means of a private hire vehicle is guilty of an offence if:

(a) the person is not accredited for the purpose of carrying on the service under Division 3, or

(b) the private hire vehicle is not licensed under Division 4.

(2) A person who carries on a private hire vehicle service, being a service operating wholly or partly within New South Wales, by means of a private hire vehicle is guilty of an offence if:

(a) the service is carried on otherwise than in accordance with the terms and conditions of the person’s accreditation under Division 3, or

(b) the service is carried on otherwise than in accordance with such of the terms and conditions of the private hire vehicle’s licence as are applicable to the person under Division 4.

Maximum penalty: 1,000 penalty units”

173. The Passenger Transport Act, s 3 defines the term “private hire vehicle” as a motor vehicle (other than a bus or taxi-cab), which is used to provide a public passenger service (other than a regular passenger service, a long-distance service, a charter service or a tourist service).

174. The Passenger Transport Act, Pt 4A, Div 3 and Div 4 respectively set out the accreditation and licence requirements for private hire vehicle services. Applications may be made to Roads and Maritime Services (“RMS”), the agency responsible for the accreditation and licensing of private hire vehicles under the Passenger Transport Act.

173. The Passenger Transport Act, s 59 allows an authorised officer to serve a penalty notice on a person, should it appear to the officer that the person has committed a “penalty notice offence”, as declared by the Passenger Transport Act or Regulations.

174. The Passenger Transport Act, s60 (1) provides that proceedings for an offence against the Passenger Transport Act or Regulations may be dealt with summarily in a Local Court or the Supreme Court in its summary jurisdiction. Under section 60(2), the maximum penalty which may be imposed by the Local Court is the lesser of 500 penalty units or the maximum prescribed penalty for the offence. Section 60 (3) places a one-year limitation period on the commencement of proceedings for an offence under the Passenger Transport Act and regulations.

175. The Passenger Transport Regulations made under the Passenger Transport Act that was operative before 18 December 2015 (“the pre-2015 Regulations”) relevantly provided at cl 217 that certain offences in Schedule 3 to the pre-2015 Regulations were declared to be “penalty notice offences”, for the purposes of s 59 of the Passenger Transport Act. The offences at Sch3 expressly included offences under ss 37(1)(a) and 37 (1)(b) of the Passenger Transport Act, and prescribed a penalty of $1,000 respectively for each offence.

176. The 2015 Regulation introduced separate provisions for exemptions to certain accreditation and licence requirements for private hire vehicle services. Those exemptions relevantly included cl 26A and cl 188A respectively, in the following terms:

“26A   Private hire vehicle service exemption

For the purposes of section 63 (3) of the Act, a person who carries on a private hire vehicle service is exempt from the requirement to hold an accreditation to carry on the service and from any provisions of the Act or this Regulation relating to compliance with the conditions of any such accreditation if:

(a)  the person was not the holder of an accreditation for the service immediately before the commencement of this clause, and

(b)  the person holds an authority to drive a private hire vehicle, and

(c)  the person complies with the provisions of clauses 15, 16, 18, 19, 25 and 26 as if the person were an accredited operator.

Note.

A person is only the subject of an exemption while the conditions of the exemption are complied with (ie the person who does not comply is committing the offence of carrying on a public passenger service without an accreditation).

…

188A   Private hire vehicle licence exemption

(1)  For the purposes of section 63 (3) of the Act, a person who carries on a private hire vehicle service is exempt from the requirement under the Act to hold a licence for any private hire vehicle operated by the operator for the purposes of that service and from any provisions of the Act or this Regulation related to compliance with the conditions of any such licence.

(2)  To avoid doubt, a person who is exempted by this clause from the requirement to hold a licence is not entitled to apply for any such licence or to renew a licence.”

179. Mr Howarth contended that the court should make findings that Uber contravened the Passenger Transport Act and the pre-2015 Regulation. Uber contended that the court did not need to make findings one way or the other in order to decide the contested issues in the proceedings.

180. Uber’s submissions on this are persuasive. The court does not have all the evidence to decide whether a contravention of the pre 2015 Regulation occurred by Uber drivers. That could be decided in other proceedings on the proper evidence. In any event any such contraventions are not serious indictable offences which would readily attract the citizen’s power of arrest, which is of present relevance.

181. There was no evidence adduced by the parties which went to alleged breaches of the Passenger Transport Act or the regulations after 18 December 2015.

Referral to the Attorney General?

182. Both sides of this case may arguably have contravened New South Wales legislation.

183. The court cannot allow potential breaches of New South Wales statutes, which may have criminal consequences, to pass by without comment or action. If in civil proceedings the court ignores conduct, established on the evidence, which may be criminal in character, the court may appear to condone contraventions of the criminal law.

184. The principle that the court cannot in civil litigation be seen to condone criminal conduct is well established. The principle that the court cannot offer relief which would be an inducement to crime or remove a restraint to crime was discussed in Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410 (“Yango Pastoral”) at [429] to [430]; [1978] HCA 42 per Mason J, in the context of enforcement of contractual obligations where the party seeking to enforce those obligations was in breach of a statutory provision. Mason J said in Yango Pastoral that this principle formed the basis for the maxim ex turpi causa non oritur actio. The “ex turpi” maxim was considered by the High Court in Miller v Miller (2011) 242 CLR 446; [2011] HCA 9. In a joint judgment, six High Court Justices, French CJ, Gummow , Hayne , Crennan , Kiefel and Bell JJ at [13] cast doubt on whether the maxim applied in tort cases, reaffirming statements made by Windeyer J in Smith v Jenkins (1970) 119 CLR 397; [1970] HCA 2.

185. The Attorney General of New South Wales as the first law officer of the Crown is the appropriate recipient of the court’s referral of the conduct which has come to the court’s attention. As the first law officer of the Crown the Attorney General has the duty to uphold the laws of this state in a tradition which goes back centuries.

186. The court raised with the parties the possibility that a referral of these proceedings to the Attorney General might take place. The court invited the parties to comment whether that should occur.

187. What conduct of the parties warrants the referral? On Uber’s side, its or its drivers’ possible contraventions of the law of this state have been discussed above. On Mr Howarth’s side his conduct in arresting Uber drivers, detaining Uber drivers either alone or in company with other persons, and menacing Uber drivers, is established to the civil standard. All this conduct could perhaps found criminal charges.

188. But Mr Howarth called the police to the scene to take custody of the persons on whom Mr Howarth was conducting a citizen’s arrest. The police and prosecuting authorities are already well aware of the conduct of Uber, its drivers and Mr Howarth. I see no need to refer any of them to the Attorney General. To do so now seems pointless.

The Public Interest and Discretionary Defences

189. The analysis and evidence earlier in these reasons shows there may be an arguable case that Uber and some of its drivers may at times have contravened the Passenger Transport Act and the pre-2015 Regulation. The relevant analysis is set out above. But the same evidence shows that Mr Howarth may have used excess force in some of his citizen’s arrests and may arguably be open at least to charges of criminal assault.

190. The Defence does not plead in answer to the Statement of Claim that injunctive relief should be refused on the basis of particular equitable or other defences. But the court’s obligation to consider whether or not it should grant discretionary relief is not displaced by the failure of the defendant to plead particular equitable defences.

191. The court raised with the parties if the evidence established facts from which it could be inferred that the plaintiff had contravened the Passenger Transport Act, whether such findings should be taken into account in the exercise of the court’s discretion whether or not to grant the injunction sought.

192. But the answer to this question is driven by the same considerations that have led the court not to refer the papers in this case to the Attorney General. The police have been called to many of the incidents the subject of the proceedings. There has been ample notice to relevant authorities should they wish to further investigate the conduct of either Uber or Mr Howarth. It is not the function of this court in a civil proceedings to second guess what might happen in a possible criminal proceedings, where neither side admits criminal conduct and where criminal conduct is not so obvious that this court should not just simply leave the issue to prosecuting authorities, who it can be assumed are well aware of it. The issue of such conduct is simply too difficult to weigh the balance in either direction, either for or against the granting of an injunction in this case and for that reason it will not be considered further.

The Two Sources of the Court’s Jurisdiction to Grant an Injunction

193. Uber seeks an injunction in the court’s equitable auxiliary jurisdiction. Uber also sought a statutory injunction under Supreme Court Act, s 66. The ingredients for each of these and the differences between them as they bear upon the issues in this case are briefly discussed in this section.

194. Equity has well-established jurisdiction to grant injunctions to restrain legal wrongs. Provided the plaintiff possesses a legal right, and that right is arguably of a proprietary nature, and the right is threatened or has already been infringed and damages would not be a sufficient remedy, then the court may grant an injunction in the auxiliary jurisdiction. Each of these four requirements is made out here.

195. (1) Establishing a Legal Right. In the Equity Court’s auxiliary jurisdiction a plaintiff can only obtain an injunction in aid of an actual legal right: Waterside Workers Federation of Australia v J.W. Alexander Ltd (1918) 25 CLR 434 at 464. Uber identifies the relevant legal right here as the tort of intimidation. The ingredients of that tort are established in this case. This is discussed earlier in these reasons.

196. (2) A Proprietary Right. The legal right being protected by the injunction must be of a proprietary nature. But this requirement has now been so modified that learned text writers have said of it “that its very existence at the moment must be regarded as crepuscular”: RP Meagher, JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed 2015, LexisNexis Butterworths), paragraph [21-040] (“Meagher, Gummow and Lehane”). If proof of a proprietary right is necessary here, in my view it can readily be established. The tort of intimidation is pursued here to protect the goodwill of Uber’s business, even though it may incidentally prevent trespasses to the person of a number of Uber drivers.

197. (3) Actual or Threatened Infringement. A threat of future infringement of a legal right will normally be inferred from past infringement unless the circumstances point to the contrary: Proctor v Bayley (1889) 42 Ch D 390 at 399 – 400. There has been past infringement here and no clear indication from Mr Howarth that it will not continue in the future unless restrained. This is not a case where the court can be confident that harm to the plaintiff has ceased or will not resume: Barber v Penley [1893] 2 Ch 447 and Leader v Moody (1875) LR 20 Eq 145. The defendant, Mr Howarth, has not offered any undertaking not to continue the alleged wrong: Jenkins v Hope [1896] 1 Ch 278. The Court’s findings show that Mr Howarth’s threats of the commission of the tort of intimidation were express and the tort was committed right up until the Court granted its first interlocutory injunction in the proceedings on 1 July 2015, and was then followed in August 2015 by other harassing conduct against Uber drivers just outside the scope of the injunction.

198. Mr Howarth now opposes Uber’s claim for injunctive relief in the proceedings. Mr Howarth’s continued opposition to the grant of an injunction is also a basis for the Court to infer that he has sufficient intention to continue engaging in the tortious conduct complained of, as will support the grant of the injunction: see Shanahan v Fitzgerald [1982] 2 NSWLR 513 at 516E. Mr Howarth vigorously opposes the grant of injunctive relief. The court is entitled to infer from Mr Howarth’s opposition that he intends to continue his arrests and harassment of drivers if not restrained. Moreover, he said as much in answer to direct questions from the Bench on this subject.

199. (4) Damages Inadequate Recompense. Damages would not be an adequate remedy for Uber. If Mr Howarth’s tortious conduct were not restrained and continued to occur a number of results may follow: (1) Uber may suffer loss without knowing it - intimidated drivers may never report the problem but may merely cease to work for Uber and many other unknown persons may be deterred from taking up work with Uber; (2) if an Uber driver or an Uber staff member were seriously injured, while the tort was being committed, and the court concludes on the evidence that such a risk exists, then quite apart from the serious risk of irreversible personal injury to drivers, Uber’s commercial reputation may suffer irreparable harm; (3), if the injunction were not granted Uber would be likely to be involved in multiple actions against not only Mr Howarth but potentially against other persons who the evidence demonstrates have been acting in concert with him from time to time; and, (4) Uber has no other practical way of remedying Mr Howarth’s tortious conduct - were Uber itself to attempt to physically restrain Mr Howarth, his conduct would be difficult to anticipate and any self-help remedy by Uber would be likely to threaten a breach of the peace. Though challenged, the inadequacy of damages requirement still exists: Castlemaine Tooheys Ltd v State of South Australia (1986) 161 CLR 148 at 153 per Mason CJ. Uber’s complaint falls within recognised categories of “irreparable injury”: Meagher, Gummow and Lehane at par [21 – 040].

200. Uber also seeks relief under Supreme Court Act 1970, s 66. This provides for the grant of injunctions as follows:

“66 Injunction

(1)   The Court may, at any stage of proceedings, by interlocutory or other injunction, restrain any threatened or apprehended breach of contract or other injury.

(2)   Subsection (1) applies as well in a case where an injury is not actionable unless it causes damage as in other cases.

(3)   The Court may restrain any threatened or apprehended waste or trespass pursuant to this section:

(a)   whether the person against whom the injunction is sought is or is not in possession under any claim of title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title, and

(b)   whether the estate claimed by any party is legal or equitable.

(4)   The Court may, at any stage of proceedings, on terms, grant an interlocutory injunction in any case in which it appears to the Court to be just or convenient so to do.”

201. Supreme Court Act, s 66 reworks the language of statutory jurisdiction first conferred on the Supreme Court of New South Wales by the Common Law Procedure Act 1857 (NSW), an enactment subsequently re-enacted in the Common Law Procedure Act 1899 (NSW), ss 176 to 179.

202. Supreme Court Act, s 66 empowers the court to grant an injunction to restrain “any threatened or apprehended… injury”. The court’s findings show that the injury of which Uber complains has already occurred and has been repeated over a period of about seven months before the court granted an interlocutory injunction. This is not a case of a merely apprehended injury but it is at least that.

203. All the conditions precedent for the grant of an injunction in Equity’s auxiliary jurisdiction need not be established before the Court can exercises its power under Supreme Court Act, s 66: Meagher, Gummow and Lehane at par [21–060]. But the grant of Supreme Court Act, s 66 relief is nevertheless discretionary, as the provision makes clear: “the Court may at any stage of proceedings…by…injunction restrain…” [Emphasis added].

204. The Court will not grant a statutory injunction where discretionary considerations, such as the following, weigh against the grant: the suffering of mere inconvenience, rather than legal injury or loss (Day v Brownrigg (1878) 10 Ch D 294); merely trivial infringement of the plaintiff’s legal rights (Llandudno Urban District Council v Woods [1899] 2 Ch 705); the interference with third-party rights (Earl of Harrington v Corporation of Derby. [1905] 1 Ch 205); or, an award of damages would be an effective and adequate remedy of its own (London and Blackwell Railway Company v Cross (1885) 31 Ch D 354, per Lindley LJ at 369). None of these discretionary considerations is a factor against granting a permanent injunction in this case.

205. Some of the same discretionary considerations that are relevant to the grant of a s 66 injunction are also relevant to a grant of an injunction in Equity’s auxiliary jurisdiction. But as earlier discussed, threatened infringement is established here and the inadequacy of damages as a remedy is also made out.

206. Granting an injunction in this case may incidentally protect the personal safety and personal liberty of third persons. Conduct amounting to the tort of intimidation will commonly have this consequence. The defendant’s conduct has resulted in instances of the deprivation of the liberty of Uber drivers. The statutory power in Supreme Court Act, s 66 has been used from time to time to restrain a deprivation of liberty: Corvisy v Corvisy [1982] 2 NSWLR 557. An incidental effect of the grant of an injunction in this case would be the protection of third parties, who may otherwise be at risk of deprivation of liberty by Mr Howarth during unwarranted citizen’s arrests, were an injunction not granted.

Conclusions and Orders

207. In the result the plaintiffs have made out their case for the grant of injunctions restraining the conduct of the defendant that has been identified in these reasons. Uber has established that Mr Howarth continued to engage in conduct that constituted the tort of intimidation, until this court restrained him by the grant of an interlocutory injunction in July 2015. The court has found that it is likely that the defendant will engage in similar conduct in the future, if a permanent restraint is not imposed upon him. This is not a case where the plaintiffs should be left to their remedies in damages, which are inadequate to deal with all the probable effects of Mr Howarth's conduct.

208. Uber’s Summons and Statement of Claim seek a restraint in the following terms (prayer for relief 1):

“1.   A final order restraining the defendant, by himself, his servants and agents, from:

(a)   intimidating or attempting to intimidate the plaintiffs;

(b)   arresting or attempting to arrest or threatening to arrest users of the   Uber software application or officers of either of the plaintiffs;

(c)   threatening any such person identified in (b) above;

(d)   harassing any such person identified in (b) above.”

209. This form of order is too wide: as drafted it would restrain Mr Howarth from performing a civilian arrest on an Uber driver who was committing a serious indictable offence. Such a wide restraint is not consistent with keeping of the peace.

210. The form of restraint should therefore be limited. One possible formula is to limit the restraint to cover conduct by Mr Howarth to prevent breaches of the Passenger Transport Act. But Uber complains that may be too narrow. Mr Howarth’s demonstrated intent to injure Uber is sufficiently strong that Uber submits that unrestrained, Mr Howarth is quite unlikely to limit himself to arrests associated with the Passenger Transport Act. In contrast, Mr Howarth argues that such a narrower restraint is what is reasonable in the circumstances.

211. Another approach is for the restraint to be framed in general terms but to exclude civilian arrests to apprehend offenders during or immediately after the commission of serious indictable offences. Mr Howarth submits that is too wide a restraint. Uber submits that is an appropriate form of restraint.

209. Yet another approach is to limit arrests or attempted arrests of users of the Uber App to circumstances where details of the alleged offenders’ identification are not able to be obtained. Thus the restraint would operate to prevent arrests where details of the alleged offenders’ identification, including a full or partial name, or licence plate details or images of the person or other means of identification could be obtained.

210. But such a limitation is illusory. We live in the digital age. Identification of the users of the Uber App by investigating authorities is always possible. Mr Howarth should always be able to photograph motor vehicle licence plates, and even drivers if he wishes to pursue his campaign. Whether or not he gets co-operation in drivers giving him copies of their driverlicences, driver identity should always be discoverable. Investigating authorities have the power to identify drivers by looking at Uber’s software, were that ever to become an issue. It is difficult to describe a realistic situation for which the citizen’s power of arrest needs to be preserved because a driver cannot be identified.

211. Uber’s argument is the more persuasive. Relief should be moulded to prevent Mr Howarth from exercising his right of civil arrest against Uber drivers, except to prevent or hinder the commission of an immediately threatened serious indictable offence, or to apprehend a person who has just committed a serious indictable offence. I see no reason to limit the restraint to a period of time. The restraint does not prevent Mr Howarth from exercising his right of free speech. He has many opinions about Uber and he is still free to express them within the law.

212. An appropriate form of relief to express that limitation is reflected in the orders made below. The parties may wish to refine the form of relief further. The court will allow a period of 28 days for either party to apply by motion to vary the precise form of relief granted. But in the meantime the orders below will operate immediately.

213. In the ordinary course costs would follow the event. There may be argument about costs in the proceedings and one or other party may seek a special costs order. But the defendant is an undischarged bankrupt and that may influence the course which Uber wishes to take in relation to costs orders. The court will order the defendant to pay the plaintiff’s costs of these proceedings, unless any party moves the court within 28 days for a different costs order.

214. The orders of the court therefore are as follows:

1. Mr Howarth (including his servants and agents) is permanently restrained from the following:

1. intimidating or attempting to intimidate the plaintiffs or their officers, employees or agents;

2. arresting or attempting to arrest officers, employees or agents of the plaintiffs, except in cases of lawful arrest to prevent or hinder the immediately threatened commission of a serious indictable offence or to apprehend a person who has just committed a serious indictable offence;

3. arresting or attempting to arrest users of the Uber App, including partner-drivers, their agents or representatives, except in cases of lawful arrest to prevent or hinder the immediately threatened commission of a serious indictable offence or to apprehend a person who has just committed a serious indictable offence;

4. threatening to arrest users of the Uber App or officers, employees or agents of either of the plaintiffs;

5. threatening any such person identified in (a) to (d) above;

6. harassing any such person identified in (a) to(d) above; and

7. causing, inciting or otherwise compelling any other person to perform the actions at (a) to (f) above;

2. The parties shall have liberty to apply within 28 days of the date of these orders to vary or refine the form of relief granted today;

3. The defendant is to pay the plaintiffs’ costs on the ordinary basis; and

4. The operation of Order (3) is stayed for the period of only 28 days to allow either party to file a motion seeking a different costs order.

**********

Amendments

03 April 2017 - 161, 163, 164 "Arresting Uber.com" changed to "@arrestinguber"

04 April 2017 - Paragraph [28], change affect to effect.

Paragraph [65], quoting Mr Howarth, affected to effected.

Paragraph [67], affected to effected.

Paragraph [121], “and identified” to "identified", quoting Mason JA “deal will” to “deal with” and “action” to “actionable”.

Paragraph [123], "talk" to "tort".

Paragraph [123](b), “effect of” to “effect to”.

Paragraph [131], first sentence, “a citizen’s arrests” to “a citizen’s arrest”.

Paragraph [131], hyperlinks removed.

Paragraphs [137] and [142], NSWC to NSWSC.

Paragraph [139], "194at" to "194 at".

Paragraph [143], “When discretionary powers statutorily conferred” to “When a discretionary power is statutorily conferred”; “intend at” to “intend that”.

Paragraph [148], "DPP v Car" to "DPP v Carr".

Paragraph [151], “evidence as his intent” to “evidence as to his intent”.

Paragraph [159], change “is family” to “his family”.

Paragraph [160], change “Arresting Uber.com" to "@arrestinguber” (a change already made in other paragraphs).

Paragraph [162], Arresting Uber to @arrestinguber.

Paragraph [184], “five High Court Justices” to “six High Court Justices”.

Paragraph [198]: first sentence, “defends Uber’s claim” to “opposes Uber’s claim”; second sentence, "Mr Howarth" to "Mr Howarth’s".

Paragraph [199], "dirvers" to "drivers".

04 April 2017 - Case citations corrected

05 April 2017 - 214. "precent" to "prevent"

05 April 2017 - case citation

08 October 2018 - [1] first line, ‘Ltd’ replaced with ‘Limited’, last line ‘(NSW)’ included after legislation.

[1], [7], [131], [185], [187] ‘State’ changed to ‘state’.

[2], [16], [17], [19], [22], [23], [30], [34], [37], [38], [52], [54], [65], [82], [86], [93], [96], [97], [101], [113], [114], [116], [117], [120], [124], [125], [129], [132], [134], [136], [153], [158], [160], [161], [167], [179], [180], [183]-[186], [190]-[194], [197]-[199], [202], [207], [215]-[217] ‘Court’ changed to ‘court’.

[3] second line, initial ‘P’ inserted before ‘Lange’.

[8] first line, ‘Driver-Partner’ changed to ‘driver-partner’.

[10], [34], [36], [48], [49], [63], [76] ‘partner driver’ changed to ‘driver-partner’ and in [66] first line, ‘partner-drivers’ changed to ‘driver-partners’.

[12] third paragraph of the quote, last line, ‘[sic]’ inserted after ‘testamonials’.

[17], [20], [21], [85], [92], ‘arresting’ changed to ‘Arresting’.

[19] fourth line, ‘or’ inserted before ‘write’.

[19] seventh line, ‘Arrest’ changed to ‘Arresting’.

[24], [28], [129], [130], [147], [154], [189], [206] ‘citizen arrests’ changed to ‘citizen’s arrests’.

[28] second last line, ‘affect’ changed to ‘effect’.

[30] last line, ‘Bar’ changed to ‘bar’.

[31] second last line, ‘the interviewer’ deleted.

[32] second line, ‘State Government’ changed to ‘state government’.

[37] third paragraph of the quote, first line, ‘[sic]’ added after ‘Upon arrival of’.

[40] second paragraph of the quote, first line, ‘anothing’ changed to ‘another’.

[41] second line under the heading ‘On 1 November 2014 at 1:11am:’, ‘[a]’ added before ‘few days’.

[42] second line, ‘2km’ changed to ‘two kilometres’.

[47] first line, ‘a’ appearing before the word ‘least’ changed to ‘at’.

[55] first line, ‘arresting uber’ capitalised.

[57], [95] hyphen in ‘You-Tube’ removed.

[59] first lines of the first and second paragraphs of the quote, ‘at’ changed to ‘At’.

[63] last sentence deleted because of repetition in later paragraph [65].

[65] sixth line, ‘number 9’ replaced with ‘the ninth arrest’.

[66] third line, ‘Program’ changed to ‘program’.

[68] fourth line, ‘Arrests 8 and 9’ replaced with ‘the eighth and ninth arrests’.

[69] fifth line, ‘Channel’ changed to ‘channel’.

[72] first line, ‘8 and 9’ changed to ‘the eighth and ninth’.

[75], [76], [79], [81]- [83], [86], [88], [90], [93], [95], [167] ‘Leichardt’ changed to ‘Leichhardt’.

[78] fourth last line, ‘He was a very compelling witness’ deleted as it repeats what is said in the first and second lines.

[79] seventh line, ‘8’ changed to ‘eight’.

[84] third line, ‘identifies’ changed to ‘identified’; fifth line ‘parking’ changed to ‘parked’.

[87] fourth line, the second ‘that’ deleted.

[90], [91], [95], ‘Incident’ changed to ‘incident’.

[91] fourth, eighth and twelfth lines, ‘at’ changed to ‘At’.

[92] fourth and fifth lines, ‘organizing’ changed to ‘organising’.

[94], [117], [118], [212], [213] ‘app’ changed to ‘App’.

[99] fourth and fifth lines, ‘OnTap’ changed to ‘ONTAP’.

[100] first line, ‘on evidence’ changed to ‘in evidence’.

[101] second line ‘the’ added before ‘Sydney CBD’.

[101], [103], [104], ‘ANZAC’ changed to ‘Anzac’.

[102] fourth line, ‘at’ change to ‘in’.

[102], [110] ‘application’ changed to ‘App’.

[104] eighth line, ‘to’ deleted.

[105] last line, ‘in’ added before ‘support’, full stop added after ‘support’.

[107] third line, ‘passages’ changed to ‘passengers’.

[113] fifth line, ‘or’ changed to ‘and lack of’.

[115] third line, ‘is’ changed to ‘are’, last line ‘who’ changed to ‘whom’.

[121] third line, ‘Announces’ changed to ‘Announcers’.

[122] second line, ‘CFMEU’ changed to ‘Construction, Forestry, Mining and Energy Union’; last line of quote ‘(footnote omitted)’ added.

[125] third line, ‘1970 (NSW)’ added after ‘Supreme Court Act’.

[132] last line, ‘cl’ changed to ‘Reg’.

[132], [172]-[176] ‘the’ added before ‘Passenger Transport Act’.

[133] seventh line, ‘s 293’ changed to ‘s 61’.

[135] first line, repeated ‘in’ deleted.

[137] fourth and fifth lines, case citation and pinpoint reference now reads ‘Director of Public Prosecutions (NSW) v Mathews – Hunter (2014) 242 A Crim R 319; [2014] NSWSC 843 (at [25])’.

[138] section heading of legislation inserted to read ‘352. Person in act of committing or having committed offence’.

[139], [141] ‘DPP’ in citation changed to ‘Director of Public Prosecutions (NSW)’.

[140] first and second line, ‘Smart AJ’ changed to ‘Barr J’; second line, ‘DPP’ changed to ‘Director of Public Prosecutions’.

[141] third line, ‘(2006) 161 A Crim R 219’ added; fourth line, ‘New South Wales’ changed to ‘NSW’.

[142] last line, pinpoint reference changed from [61] to [52].

[143] sixth line ‘Commonwealth’ changed to ‘Commonwealth of Australia’, pinpoint reference ‘at 36’ added to CLR citation and removed from medium neutral citation; second last line CLR page number changed from ‘610’ to ‘611’, medium neutral citation ‘[1999] HCA 21’ added, pinpoint reference to page number 650 removed, word ‘per’ removed; last line ‘Commonwealth’ changed to ‘Commonwealth of Australia’, medium neutral citation ‘[1999] HCA 14’ added, pinpoint reference to page number 554 removed.

[147] third last line, ‘are’ changed to ‘is’.

[148] fourth line, pinpoint reference to page 159 changed to paragraph [35].

[149] third line, medium neutral citation ‘[1993] HCA 80’ added; third last line ‘per’ removed; second last line medium neutral citation ‘[2001] NSWCCA 443’ added, ‘an’ added before ‘arrest’, ‘arrest’ changed to ‘arrests’.

[150] second last line, ‘person’ changed to ‘officer’.

[151] heading before paragraph 151 removed.

[152] sixth line, ‘Internet’ changed to ‘internet’.

[158] eighth line, ‘Games’ changed to ‘Game’.

[162] second line, ‘apprentice’ changed to ‘Apprentice’; third line, ‘Absolute’ changed to ‘absolute’; fourth line, ‘a’ added before ‘campaign’.

[167] second line, ‘2015’ added.

[169] third line, ‘1990’ deleted.

[170] fourth line, ‘on’ added before ‘1 July’ and before ‘27 July’.

[171] fourth line, ‘(NSW)’ added to citation, second last line ‘Regulations’ changed to ‘regulations’.

[172], [175]-[177] ‘section’ changed to ‘s’.

[174] first line, ‘Pt 4A’ added before ‘Divisions’, ‘Divisions’ changed to ‘Div 3 and Div 4’.

[176] last line, ‘Regulations’ changed to ‘regulations’.

[177] first line, ‘The Passenger Transport’ added before ‘regulations’; second line ‘were’ changed to ‘was’; fourth line ‘of’ changed to ‘to’; sixth line ‘Schedule’ changed to ‘Sch’.

[178] third line, ‘regulations’ deleted, ‘cl’ added before 26A and 188A.

[179] third line, ‘on’ changed to ‘or’.

[180] second line, ‘Regulation’ changed to ‘Regulations’.

[184] fourth line, ‘Co’ changed to ‘Company’; fifth line, medium neutral citation ‘[1978] HCA 42’ added; tenth line, ‘(2011) 242 CLR 446’ added after ‘Miller v Miller’; last line, medium neutral citation ‘[1970] HCA 2’ added.

[187] first line, apostrophe in ‘parties’ removed; second line, apostrophe added to ‘drivers’.

[192] fifth line, ‘of’ added after ‘conduct’, ‘of’ removed after ‘either’.

[196] fourth and fifth lines, ‘and PG Turner’ added after ‘MJ Leeming’; sixth line ‘Butterworths’ moved after ‘LexisNexis’.

[197] seventh line, ‘Phenley’ changed to ‘Penley’; second last line, ‘by’ moved from before ‘in August 2015’ to after those words.

[199] fourth last line, ‘State of’ added before ‘South Australia’, last line ‘par’ added before pinpoint reference.

[201] third and last lines, ‘(NSW)’ added after legislation titles.

[203] third line, ‘par’ added before pinpoint reference; last line, ‘[Emphasis added]’ added.

[204] sixth line, citation changed to ‘Earl of Harrington v Corporation of Derby’; eighth line ‘Co’ changed to ‘Company’.

[206] ‘(c’ removed before ‘Uber software application’.

[210] third and sixth lines, ‘1990’ deleted.

[211] first line, ‘to’ added before ‘be framed’.

[212] fourth line, apostrophe added to ‘offenders’.

[213] fifth line, ‘drivers’ licences’ changed to ‘driver licences’.

[214] third line, ‘or’ deleted after ‘hinder’; sixth line ‘precent’ changed to ‘prevent’.

[217] paragraph (1)(a), ‘Intimidating’ changed to ‘intimidating’; paragraph (1)(f), ‘or’ changed to ‘to’; paragraph (2), ‘and’ deleted; paragraph (3), ‘; and’ added.

Decision last updated: 08 October 2018