Re Evans & anor v Ex Parte Clyne [1984] FCA 200

Re Evans & anor v Ex Parte Clyne [1984] FCA 200

Section 71 of the Judiciary Act confers a power, not a duty, upon the Attorney-General to decline to proceed further in a prosecution. As there is no obligation to make a decision, neither mandamus nor review under the Administrative Decisions (Judicial Review) Act is available. The Director of Public Prosecutions considered the applicant's submissions on their merits, and Parliament intended prosecutorial discretion to reside with the Director subject to general directions by the Attorney-General.

Parties
Applicant: Peter Clyne; First Respondent: Senator the Hon. Gareth Evans, Attorney-General for the Commonwealth of Australia; Second Respondent: The Director of Public Prosecutions for the Commonwealth of Australia
Jurisdiction
Australia
Judgment Date
16 July 1984
Procedural Posture
Administrative Law; Criminal Law / Final Judgment by Single Judge
Outcome
Both applications dismissed; applicant to pay costs.
Legal Topics
Mandamus, Administrative Decisions (judicial Review) Act, Nolle Prosequi Applications, Director of Public Prosecutions Act, Judiciary Act S.71
Administrative Law Criminal Law Mandamus Administrative Decisions (judicial Review) Act Nolle Prosequi Applications Director of Public Prosecutions Act Judiciary Act S.71

Case Brief

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Parties

Peter Clyne

Applicant

Senator the Hon. Gareth Evans, Attorney-General for the Commonwealth of Australia

First Respondent

The Director of Public Prosecutions for the Commonwealth of Australia

Second Respondent

Procedural Posture

Administrative Law; Criminal Law / Final Judgment by Single Judge

Legal Issues

  1. 1 Whether the Attorney-General is under a personal obligation to consider a 'no bill' application
  2. 2 Whether mandamus can be issued against the Attorney-General for failing to consider a 'no bill' application
  3. 3 Whether a review lies under the Administrative Decisions (Judicial Review) Act for failure to consider the application

Ratio Decidendi

Section 71 of the Judiciary Act confers a power, not a duty, upon the Attorney-General to decline to proceed further in a prosecution. As there is no obligation to make a decision, neither mandamus nor review under the Administrative Decisions (Judicial Review) Act is available. The Director of Public Prosecutions considered the applicant's submissions on their merits, and Parliament intended prosecutorial discretion to reside with the Director subject to general directions by the Attorney-General.

Court Disposition

Both applications dismissed; applicant to pay costs.

Orders

  • Application for mandamus dismissed.
  • Applicant to pay the costs of the respondents.