Attorney General in and for the State of New South Wales v Potier

[2014] NSWSC 118

Supreme Court

New South Wales

Medium Neutral Citation:	Attorney General in and for the State of New South Wales v Potier [2014] NSWSC 118
Hearing dates:	30 November 2012; 28 February 2013; further written submissions closed 3 April 2013
Decision date:	25 February 2014
Before:	McCallum J
Decision:	Vexatious proceedings order made prohibiting the defendant from instituting proceedings in New South Wales except in the appeal proceedings instituted by him in the Court of Criminal Appeal being proceedings numbered 2005/14700 and staying any proceedings instituted by him except that appeal and any interlocutory proceedings in that appeal
Catchwords:	PROCEDURE - application for vexatious proceedings order under s 8 Vexatious Proceedings Act - 31 proceedings relied upon by Attorney General - whether all vexatious - whether defendant has frequently instituted or conducted vexatious proceedings - whether Vexatious Proceedings Act applies to a person governed by the Felons (Civil Proceedings) Act - discretion to make orders sought - where defendant has appeal against conviction for serious indictable offence pending in the Court of Criminal Appeal - whether appropriate to make an order prohibiting the institution of interlocutory applications in that appeal.
Legislation Cited:	Acts Interpretation Act 1901 (Cth) Bail Act 1978 Crimes Act 1900 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Evidence Act 1995 Felons (Civil Proceedings) Act 1981 Freedom of Information Act 1989 Justices Act 1902 Local Courts (Criminal and Applications Procedure) Rule 2003 Migration Act 1958 (Cth) Migration Regulations 1994 (Cth) Supreme Court Act 1970 Vexatious Proceedings Act 2008
Cases Cited:	Application of Malcolm Huntley Potier [2012] NSWCA 222 Attorney General in and for the State of New South Wales v Gargan [2010] NSWSC 1192 Attorney General in and for the State of New South Wales v Potier [2012] NSWSC 970 Attorney General (NSW) v Wilson [2010] NSWSC 1008 Basha v R (1989) 39 A Crim R 337 Dugan v Mirror Newspapers Ltd [1978] HCA 54; (1978) 142 CLR 583 Mazukov v University of Tasmania [2004] FCAFC 159 Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 Potier, Malcolm Huntley [2000] MRTA 464 Potier, Malcolm Huntley [2000] MRTA 465 Potier v Arnott & Ors [2010] NSWSC 144 Potier v Arnott [2012] NSWCA 5 Potier v Department of Corrective Services (GD) [2010] NSW ADTAP 8 Potier v Director General, Department of Justice and Attorney General [2011] NSWCA 105 Potier v DPP [2001] NSWSC 514; (2001) 123 A Crim R 176 Potier v District Court of New South Wales [2004] NSWCA 303 Potier v General Manager and Governor, M.R.R.C [2007] NSWSC 1031 Potier v General Manager, Dawn De Loas Correctional Centre [2012] NSWCA 352 Potier v General Manager, Dawn De Loas Correctional Centre (No 2) [2012] NSWCA 353 Potier v General Manager Metropolitan Remand and Reception Centre [2009] HCA Trans 35 Potier v The General Manager MSPC, Area 2 Long Bay Correctional Centre [2012] NSWSC 233 Potier v Huber [2004] NSWSC 720; (2004) 148 A Crim R 399 Potier v Legal Aid Commission of New South Wales [2011] NSWSC 1066 Potier v Magistrate Maloney & Ors [2005] NSWSC 336 Potier v Magistrate Maughan [2004] NSWSC 590 Potier v Magistrate Moore [2004] NSWSC 1131 Potier v Magistrate O'Shane & Anor [2008] NSWSC 141 Potier v Minister for Immigration and Multicultural Affairs [2000] FCA 503 Potier v Minister for Immigration and Multicultural Affairs [2000] FCA 252 Potier v Minister for Immigration and Multicultural Affairs [2000] FCA 1662 Potier v Minister for Immigration and Multicultural Affairs [2001] FCA 1770 Potier v Minister for Immigration and Multicultural Affairs [2001] FCA 217 Potier v Minister for Immigration and Multicultural Affairs [2004] FCA 520 Potier v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 288 Potier v R [2006] NSWCCA 27 Potier v R [2006] NSWCCA 300 Potier v R [2010] NSWCCA 231 Potier v R [2010] NSWCCA 234 Potier v R [2011] NSWCCA 204 Potier v Refugee Review Tribunal [2000] FCA 669 Potier v Ruddock & MRRC [2008] NSWSC 153 R v Potier [2001] NSWCCA 404 R v Potier [2004] NSWCCA 136 R v Potier [2005] NSWCCA 256 R v Potier [2005] NSWCCA 336 R v Potier [2011] NSWCCA 170 Saffron v DPP (1989) 16 NSWLR 397
Category:	Principal judgment
Parties:	Attorney General in and for the State of New South Wales (plaintiff) Malcolm Huntley Potier (defendant)
Representation:	Counsel: M England (plaintiff) M Licha (defendant) Solicitors: Crown Solicitor's Office (plaintiff)
File Number(s):	2011/344959
Publication restriction:	None

Judgment

1. HER HONOUR: Malcolm Huntley Potier is a citizen of the United Kingdom. Since his arrival in Australia in 1999, Mr Potier has been the unsuccessful plaintiff or applicant in over 30 legal proceedings falling broadly into the categories of immigration proceedings, applications related to criminal proceedings against Mr Potier and Administrative Decisions Tribunal proceedings. This litigious course may be seen to have begun with the breakdown of Mr Potier's relationship with his de facto wife and his attempts to obtain custody of their only child.

1. The present proceeding is an application by the New South Wales Attorney General for orders against Mr Potier under the Vexatious Proceedings Act 2008. That Act creates a statutory qualification to the otherwise generally unqualified entitlement of persons in this State to invoke the jurisdiction of its courts and tribunals. The determination of the present application is complicated by the fact that Mr Potier does not currently enjoy an unqualified entitlement to institute civil proceedings. He is presently in custody as a result of having been convicted of a serious indictable offence. Accordingly, his entitlement to institute civil proceedings is qualified by the Felons (Civil Proceedings) Act 1981, which imposes a requirement for leave of the court to commence any proceeding: see s 4 of the Act. It will be necessary to return to the significance of that legislation.

1. The clear purpose of the Vexatious Proceedings Act is to protect the administration of justice against frequent misuse of its processes by individual litigants. It does so by conferring power on certain courts to make an order prohibiting a person from instituting proceedings in New South Wales and staying proceedings already instituted by that person. Relevantly for present purposes, the power to make such orders is discretionary and is enlivened only where the court is satisfied that the person is someone who has frequently instituted or conducted proceedings which may be regarded as "vexatious" within the meaning of the Act. The effect of such an order is not to prohibit the person from commencing proceedings altogether but to impose a requirement to obtain the leave of the court in order to institute any further proceedings. The process of obtaining leave is closely prescribed and is relatively cumbersome.

1. It is necessary to explain the precise orders sought by the Attorney General. The following summary is drawn from some of the decisions relied upon by the Attorney General in support of the present application and is set out by way of background only. Although the question whether any of those proceedings was "vexatious" is a matter which remains to be determined, I do not understand the underlying background to be in dispute.

1. Mr Potier was in a relationship with his former de facto wife for 11 years until August 1999. They have a child from that relationship, who was still an infant when they separated. After the relationship ended, proceedings were commenced in the United Kingdom for custody and access orders relating to that child.

1. In August 1999, the mother travelled to Australia with the child, evidently against Mr Potier's wishes. Mr Potier followed and brought proceedings for the return of the child (commonly referred to as an application under the Hague Convention on the Abduction of Children). The Family Court made an order that the child be returned to the United Kingdom.

1. Mr Potier, the mother and the child all returned to the United Kingdom. However in late December 1999 Mr Potier came back to Australia with the child using false passports. He entered Australia on a travel class visa. The mother followed in early January 2000 and made her own application under the Hague Convention. In mid-February 2000, Mr Potier and the child were located. The child was taken under the control of the New South Wales Department of Community Services but in the custody of the mother. Mr Potier was taken into immigration detention and, on 17 February 2000, his visa was cancelled on the basis of his production of the false passport.

1. Shortly before being taken into immigration detention Mr Potier had formed an acquaintance with a woman who ran an Internet café in Melbourne. He told her that he had abducted the child from the United Kingdom because he was concerned about the mother's new partner. Mr Potier said he believed that the new partner was a paedophile who would harm the child.

1. The proprietor of the Internet café remained in contact with Mr Potier after he was taken into immigration detention. She says that, during that time, Mr Potier revealed a plan to kill the mother's new partner, later also discussing killing the mother as well.

1. At some stage police became involved. On 8 May 2000 Mr Potier was arrested and charged with two counts of soliciting to murder (relating to the mother and her new partner). The Crown case in support of those charges rested heavily on recordings of conversations by telephone and in person alleged to have taken place between Mr Potier and an undercover police officer. Mr Potier denies the authenticity of those recordings. He maintains that some of the tapes were altered and that others were fakes.

1. In October 2001, after a trial by jury, Mr Potier was convicted of the two offences. Before being sentenced, he was charged with a third offence of soliciting to murder, again relating to the mother.

1. In April 2002, Mr Potier was sentenced for the first two offences. The sentences imposed were two fully concurrent terms of imprisonment of six years and eight months with a non-parole period of five years commencing on 8 May 2000 and expiring on 7 May 2005 and a balance of term expiring on 7 January 2007. Mr Potier's appeals against both conviction and sentence in respect of those offences were dismissed.

1. In October 2006, Mr Potier was convicted of the third offence. On 13 November 2006 he was sentenced to imprisonment for 12 years with a non-parole period of 7 years from 7 August 2006. The first date on which he was eligible for release to parole was 7 August 2013 but parole had not been granted as at the date of this judgment. Mr Potier remains in custody serving that term of imprisonment.

1. The significance of that history is that Mr Potier has filed an appeal against the third conviction which is still pending in the Court of Criminal Appeal. The Attorney General does not, by this application, seek to stay the prosecution of that appeal. However, he does seek to prohibit Mr Potier from instituting any interlocutory application in the appeal other than with leave under the Vexatious Proceedings Act. To that end, the Attorney General seeks orders in the following terms:

1. Pursuant to s 8(7)(b) of the Vexatious Proceedings Act, that the defendant be prohibited from instituting proceedings in New South Wales other than with leave of an appropriate court under that Act.

2. Pursuant to s 8(7)(a) of the Vexatious Proceedings Act, any legal proceedings instituted by the defendant in any Court or Tribunal in New South Wales before the date of this order be hereby stayed (with the exception of the substantive proceedings Potier v R in the Court of Criminal Appeal being proceedings numbered 2005/14700).

Principles to be applied

1. As already noted, the power to make those orders is enlivened only if I am satisfied that Mr Potier has frequently instituted or conducted vexatious proceedings in Australia: s 8(1) of the Act. If I am so satisfied, a separate task is to consider whether I should exercise the discretion to make the orders sought.

1. The term "vexatious proceedings" is defined in s 6 of the Act to include the following:

(a) proceedings that are an abuse of the process of a court or tribunal, and

(b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and

(c) proceedings instituted or pursued without reasonable ground, and

(d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

1. The evidence relied upon by the Attorney General was a collection of all of the judgments that could be located in proceedings instituted by Mr Potier. Not all of those were relied upon as "vexatious proceedings" within the meaning of the Act. Ms England, who appeared for the Attorney General, provided a helpful chronological table of those proceedings relied upon as vexatious, in each case identifying the provision of s 6 within which the proceedings were alleged to fall.

1. The judgments tendered by the Attorney General were admitted without objection. Neither party addressed me as to the provisions of s 91 of the Evidence Act 1995, which provides:

91 Exclusion of evidence of judgments and convictions

(1) Evidence of the decision, or of a finding of fact, in an

Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.

1. I do not know whether the application of that section has been considered in any proceedings for orders under the Vexatious Proceedings Act. As already stated, neither party addressed me on that issue. Noting that circumstance, the proper approach would appear to be to take care not to rely upon any finding of fact recorded in the decisions tendered by the Attorney General as evidence of any fact to be established in the present application where that was a fact in issue in the proceeding reported in the relevant judgment.

1. As to the issue whether Mr Potier has frequently instituted or conducted vexatious proceedings, Ms England's written submissions provided a summary of the relevant principles, drawn from the judgment of Davies J in Attorney General in and for the State of New South Wales v Gargan [2010] NSWSC 1192, as follows (at [7]):

(a) The test of "frequently" is a less demanding test than was required under s 84 Supreme Court Act 1970;

(b) The term "frequently" is a relative term and must be looked at in the context of the litigation being considered;

(c) The number of proceedings considered may be small if the proceedings are an attempt to re-litigate an issue already determined against the person;

(d) Regard may be had to applications made by the person in proceedings commenced against that person;

(e) Regard may be had to the way the person has behaved and conducted himself or herself in the proceedings before the Court;

(f) Regard may be had to the findings and result in the proceedings under consideration.

1. Subject to one additional remark, I would respectfully adopt those principles. The last proposition (that regard may be had to the findings and result in the proceedings under consideration) must be approached with some caution. It had been considered more fully by Davies J in his earlier decision in Attorney General (NSW) v Wilson [2010] NSWSC 1008, where his Honour said (at [22]):

It is necessary to examine the various proceedings commenced by Mr Wilson and proceedings in which he has filed applications and appeared to see if it can be said that these are vexatious proceedings. In many or all of these proceedings orders have been made dismissing or striking out the proceedings or the applications on various grounds, but including grounds identified in Parts 13.4 and 14.28 UCPR. In coming to a view whether such proceedings are vexatious, I can adopt the approach taken by Patten AJ in Attorney General v Bar Mordecai [2005] NSWSC 142 at [5]), and followed by Fullerton J in Croker at [125], namely, that although I need to form my own view about each piece of litigation relied upon by the Attorney General,

I am entitled to have regard to the result of the proceedings and, where appropriate, the findings of, and views expressed, by the various judicial officers who dealt with them.

1. I would respectfully accept the correctness of the approach taken by Patton AJ subject to one matter of clarification. His Honour expressed the view that the findings of the Court that determined any application relied upon as being vexatious can be taken into account "where appropriate".

1. As already noted, I do not think it would be appropriate to rely on the judgment in an earlier proceeding to establish the existence of a fact that was in issue in the proceedings. However, it is doubtful whether the characterisation of proceedings as an abuse of the process of the Court is to be regarded as a "fact" in that context. As noted by Davies J in the passage from Wilson set out above, the judge determining the application under the Vexatious Proceedings Act needs to form his or her own view about each piece of litigation relied upon by the Attorney General, but may well derive strong guidance on that issue from the conclusion reached by the judge that determined the litigation in question.

1. As to the exercise of the Court's discretion, some further general propositions were conveniently summarised in Ms England's submissions, as follows (I do not think it is necessary to include the authorities cited by Ms England in support of these propositions):

(a) A vexatious proceedings order is an extreme remedy and freedom of access to the Courts by citizens is a fundamental principle. Deprivation of access to the Courts takes on greater significance when the person affected is a prisoner, because prisoners by their nature are vulnerable.

(b) There is an important countervailing principle. The Court's own processes must be protected against 'unwarranted usurpation of its time and resources... [and there is also] the need to protect the community...against disruption to the court system flowing from the repeated institution of groundless proceedings.' Vexatious proceedings are damaging to the public interest.

(c) It is a central and pervading tenet of the judicial system that - except for a few narrowly defined circumstances - once controversies are resolved, they are not to be re-opened. This is particular so when a party moves on nothing more than evidence eon which they previously failed. There is a public interest in finality of litigation.

1. I turn to consider whether the judgments tendered by the Attorney General establish that Mr Potier has frequently instituted or conducted vexatious proceedings in Australia. It is convenient to consider the judgments in the three categories identified above, as they appear in the material tendered by the Attorney General.

Immigration proceedings instituted by Mr Potier

1. The first three immigration proceedings instituted by Mr Potier are not alleged to have been vexatious. It is nonetheless relevant to consider the judgments in those proceedings in order to place later proceedings in context. In my view it is also relevant, when considering the exercise of the Court's discretion, to have regard to the fact that some proceedings instituted by Mr Potier (albeit a small proportion of them) are not contended to have been instituted other than on reasonable grounds and for a proper purpose.

1. The first two proceedings were applications to the Migration Review Tribunal of Australia for review of two decisions of the Department of Immigration and Multicultural Affairs to refuse Mr Potier a bridging visa. The applications were determined on 29 February 2000: Potier, Malcolm Huntley [2000] MRTA 464 and Potier, Malcolm Huntley [2000] MRTA 465 (pages 8 to 23 of exhibit A).

1. The circumstances in which those applications were made were as follows. After returning to Australia on a false passport, Mr Potier was apprehended by officers of the Australian Federal Police on 16 February 2000. On 17 February 2000, his travel class visa was cancelled. He then completed and submitted an application for a protection visa, which is the form of visa granted to refugees. That application also served automatically as an application for a bridging visa.

1. After taking legal advice, Mr Potier asked the departmental officer to whom he had handed the protection visa application to put that application "on hold". Although the position is not entirely clear from the material before me, it appears that his solicitor then filed (or claimed to have filed) two further applications: an application for review of the decision to cancel the travel class visa and a second, separate application for a bridging visa. In support of the separate bridging visa application, Mr Potier stated that he needed to be released from detention in order to be able to attend the Family Court proceedings relating to the alleged abduction of the child, which had been adjourned to 1 March 2000.

1. The second application for a bridging visa was refused on 18 February 2000. On 22 February 2000, Mr Potier applied to the Tribunal for review of that decision. On the same day, he also told a departmental officer that he wished to proceed with the original application he had submitted himself on 17 February 2000. That application was refused on 24 February 2000. Mr Potier applied to the Tribunal for review of that decision also.

1. There were accordingly two applications to the Tribunal, one in respect of each of the two separate decisions refusing a bridging visa. The applications were heard and determined together.

1. In an oral hearing, Mr Potier told the Tribunal that, after he and the mother returned to the United Kingdom, an interim order had been made giving him access to the child only one week in four, an arrangement with which he was not satisfied. Mr Potier further expressed his concerns that the mother wished to migrate to Australia to marry her new partner (an Australian citizen), whom Mr Potier described to the Tribunal as a "sexual deviant".

1. Each application was refused on the same grounds. The Tribunal found that Mr Potier satisfied all of the criteria for a bridging visa except the requirement that the Tribunal be satisfied that if a bridging visa were granted the applicant would abide by any conditions of the visa. In light of Mr Potier's admitted entry into Australia on false passports and subsequent attempts by him to avoid detection by police; his access to extensive funds and steps taken by him to create a false impression as to his whereabouts, the Tribunal was not satisfied that Mr Potier would abide by reporting conditions and advise the Department of any change of address if released. In reaching that conclusion, the Tribunal stated (at [35] in each judgment) that it accepted Mr Potier's evidence that he was deeply concerned about the safety of his child.

1. The third immigration proceeding instituted by Mr Potier (which is also not relied upon by the Attorney General as being vexatious) was an application to the Federal Court for an order that Mr Potier be released from immigration detention on the basis that he was being unlawfully detained. The application was determined by Finkelstein J: Potier v Minister for Immigration & Multicultural Affairs [2000] FCA 252 (pages 24 to 33 of exhibit A).

1. Although other issues were argued, the question whether Mr Potier was being unlawfully detained turned essentially on the timing of the determination of the application for a protection visa which Mr Potier had requested be put "on hold". It was a requirement of the Migration Regulations 1994 that an application for a bridging visa be determined "within two working days", failing which a bridging visa was deemed to have been granted. The issue was whether Mr Potier's application was required to be determined within two working days of 17 February 2000 (the date on which it was handed to the departmental officer together with the required fee) or within two working days of 22 February 2000 (the date on which Mr Potier said he wished to proceed with the application).

1. Finkelstein J held that Mr Potier's request that the protection visa application be put "on hold" did not have the effect of withdrawing the application, which had been duly lodged together with payment of the required fee. Accordingly, his Honour held that, since the associated application for a bridging visa was neither granted nor refused within two working days after that date, Mr Potier was deemed to have been granted a bridging visa on 22 February 2000 (taking account of a weekend during that period). On that basis, his Honour held that the Minister had no power to refuse to grant a bridging visa, as purportedly occurred on 24 February 2000.

1. A separate issue was whether the deemed visa permitted Mr Potier to remain in Australia for five working days from the date of grant of the visa or, alternatively, for 14 days from that date. That in turn depended on whether Mr Potier had "shown" a departmental officer a ticket for departure from Australia. Mr Potier had a ticket but not in his possession. After he was taken into immigration detention, officers of the Australian Federal Police executed a search warrant at the place where he had been staying and seized his travel documents. Mr Potier was unsuccessful in persuading Finkelstein J that those events had resulted in the ticket being "shown" to an officer within the meaning of the Migration Regulations.

1. It followed from those conclusions that Finkelstein J was satisfied that Mr Potier had been unlawfully detained between 22 and 29 February 2000 but that, as at 3 March 2000 (the date on which his Honour determined the application), Mr Potier had no further entitlement to remain at liberty, as he contended. Although he was ultimately unsuccessful, the points raised were at least respectable. The Attorney General's concession that those three proceedings were not vexatious was, with respect, properly made.

1. The next immigration proceeding instituted by Mr Potier was an application filed in the Federal Court on 27 March 2000. The application was determined by Lindgren J on 10 April 2000: Potier v Minister for Immigration & Multicultural Affairs [2000] FCA 503 (pages 34 to 43 of exhibit A).

1. The application sought judicial review of the decision of the Minister made 23 March 2000 refusing a further application by Mr Potier for a bridging visa. The Minister moved for summary dismissal of the application. The circumstances in which the application was brought in the Federal Court were as follows.

1. Following his unsuccessful applications to the Migration Review Tribunal and before Finkelstein J, Mr Potier persisted in his attempts to be released from immigration detention. On 6 March 2000, he made a further application for a bridging visa. That application was based on an alleged change of circumstances since previous refusals, including the determination of Finkelstein J that Mr Potier had been unlawfully detained from 22 to 29 February 2000; the fact that he had applied for a new travel document of which the Minister allegedly had knowledge and the fact that the child's custody hearing was listed for 14 March 2000.

1. Section 74 of the Migration Act 1958 (Cth) provided that, following the refusal of an application for a bridging visa, a further application could not be made earlier than 30 days after (in Mr Potier's circumstances) the final determination of the earlier application unless the further application was made in "prescribed circumstances". The Minister determined that the application lodged on 6 March 2000 was not made in the prescribed circumstances and, accordingly, that Mr Potier was not eligible to lodge a further application inside the 30-day period.

1. Mr Potier then lodged a further application for a bridging visa on 21 March 2000. The Minister responded by referring to the response to the application lodged on 6 March 2000. The Minister said:

This current 'application' is made in similar circumstances and, as such, cannot be made before 30 days have expired since your last bridging visa was finally determined; that date being 31 March 2000.

1. On 4 April 2000, after instituting the proceedings in the Federal Court, Mr Potier lodged yet another application for a bridging visa. It was common ground that that application was lodged after the expiration of the 30-day period.

1. Mr Potier's first point was that each of the two bridging visa applications filed on 21 March and 4 April 2000 respectively was not determined within the two-working-day period allowed under the Act, with the result that a visa was deemed to have been granted. That argument was based on the proposition that the day on which the application was filed was to be included in the counting of the two-working-day period. Lindgren J held that that was plainly incorrect, having regard to the terms of s 36(1) of the ActsInterpretation Act 1901 (Cth) (at [24]).

1. As to the Minister's treatment of the application lodged on 21 March 2000, which the delegate declined to entertain on the grounds that Mr Potier was "not eligible" to lodge it, Lindgren J evidently considered that, contrary to the position taken by the Minister, the Minister was obliged to consider the application (at [31] and [33]). To that extent, Mr Potier's argument was accepted. However, his Honour was satisfied that the decision was not a judicially-reviewable decision. The premise of that conclusion was that the so-called privative clause in s 474 of the Migration Act was effective in ousting the Court's jurisdiction under s 39B of the Judiciary Act 1903.

1. In the present application, the Attorney General relies upon the conclusion that the Court had no jurisdiction in the matter to support the contention that the proceeding was instituted without reasonable ground and was accordingly vexatious within the meaning of the Vexatious Proceedings Act. The determination that the Court did not have jurisdiction does not mandate that conclusion. Although it does not necessarily cast doubt on the correctness of the premise on which Lindgren J determined the application in the Federal Court, it may be noted that the High Court subsequently held that s 474 did not prevent the judicial review of decisions that involved jurisdictional error and did not purport to oust the jurisdiction conferred by s 75(v) of the Constitution: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476. The point is that the efficacy of the privative clause may at least be accepted to have been historically contentious. In the absence of a full survey of the relevant jurisprudence, I am not persuaded that the application determined by Lindgren J was a vexatious proceeding.

1. The next immigration proceeding instituted by Mr Potier was an application filed in the Federal Court on 1 May 2000. The application was determined by Einfeld J on 3 May 2000: Potier v Refugee Review Tribunal [2000] FCA 669 (pages 44 to 49 of exhibit A).

1. Mr Potier's initial application for a protection visa (filed after he was taken into immigration detention) was purportedly made on behalf of both himself and the child. On 9 March 2000, a delegate of the Minister decided that neither Mr Potier nor the child was a person to whom Australia had protection obligations under the Convention on Refugees and that their application for refugee asylum in Australia had to fail.

1. Mr Potier subsequently made an application to the Refugee Review Tribunal, also both on his own behalf and on behalf of the child, seeking review of the decision refusing the protection visa. The hearing before the Tribunal was fixed for 20 April 2000. Shortly before the hearing Mr Potier, who was still in immigration detention, told the Tribunal that he would like to attend the hearing together with the child. He requested the Tribunal to arrange for the child to be brought to the hearing. The child was at that time under the care of the New South Wales Department of Community Services.

1. After receiving that request, the Tribunal notified Mr Potier by letter dated 19 April 2000 that it had formed the view that the child was not validly included in the protection visa application. The application heard by Einfeld J sought review of that decision.

1. The Tribunal's reasons for determining that the child was not validly included in the protection visa application included its conclusion that Mr Potier did not have legal authority to make the application on behalf of the child because, in his application, he had acknowledged that he did not at that time have any legal rights with respect to the child. That conclusion was reinforced by the determination of the Family Court which had ordered that the child be returned forthwith to the United Kingdom in the company of the mother. An appeal from that decision had been brought by Mr Potier and was fixed for hearing two days after the determination of the application before Einfeld J.

1. Einfeld J noted that the Tribunal had made no binding determination as to whether Mr Potier could ever make an application on behalf of the child for a protection visa. His Honour noted that the Tribunal had simply determined that it was inappropriate to determine the child's application, since the custodial matter was being litigated elsewhere (at [23]).

1. In the present application, the Attorney General submitted that the proceeding was an abuse of process within the meaning of s 6(a) of the Vexatious Proceedings Act in that it sought to re-open an issue determined by the Family Court. It was further submitted that the proceeding was instituted without reasonable ground, and so was vexatious within the meaning of s 6(c) of the Act, since Mr Potier had acknowledged he had no legal rights in respect of the child. In my view, the proceedings were vexatious, for those reasons.

1. I should note that the Attorney General also relied upon the following remarks made by his Honour at [13] of the judgment (emphasis added):

The application certainly has some amazing and bizarre features. Indeed it marks a turning point in this Court's experience in that, so far as I have been able to ascertain, no one has ever previously sought protection in Australia from the risk of persecution at the hands of the United Kingdom authorities. [The mother] obviously wishes to return home with [the child], as is the effect of the orders of the Family Court. Although an applicant for refugee asylum here, the applicant resides and apparently works in the United Kingdom. There was certainly no evidence in this case of any dangers facing the applicant or [the child] in the United Kingdom, or that the rule of law in the sense of fair and impartial justice will not be available to them and their circumstances as stringently there as it would be here. Although I did ask Mr Potier what were the risks of persecution he faced, I failed to extract even one. It is, to say the least, more than faintly preposterous that he should thus be claiming that it is necessary for him to have the protection of the government and people of Australia against a risk of persecution in the UK. It seems unlikely that he genuinely wishes to remain in Australia and more likely that his application for refugee status is a tactic to try to reverse [the mother's] custody of the child, or to subvert or influence the result of the Family Court proceedings.

1. The Attorney General relied upon those concluding remarks (underlined) as separate support for the contention that the proceedings were an abuse of process. I have not relied upon that separate ground. It is likely that the question of Mr Potier's motive in bringing the application for refugee status was a fact in issue in the application determined by Einfeld J (as going to his Honour's discretion to grant the relief sought). If that were the case, it would follow in accordance with s 91 of the Evidence Act that the judgment is not admissible to prove the existence of that fact (Mr Potier's state of mind) in the present application. The evidence before me does not permit me to draw any independent conclusion as to whether Mr Potier's application for refugee status was a deliberate tactic to subvert the orders of the Family Court.

1. In any event, for the reasons already identified, I am satisfied that the proceeding was vexatious within the meaning of the Vexatious Proceedings Act.

1. The next immigration proceeding instituted by Mr Potier was an application filed in the Federal Court seeking review of the decision of the Refugee Review Tribunal given on 30 May 2000 affirming the Minister's decision not to grant Mr Potier a protection visa. The application was determined by Wilcox J on 3 November 2000: Potier v Minister for Immigration and Multicultural Affairs [2000] FCA 1662 (pages 50 to 55 of exhibit A).

1. The application was doomed to fail. The Refugee Review Tribunal had drawn Mr Potier's attention to the definition of a refugee contained in article 1A(2) of the 1951 Convention Relating to the Status of Refugees (as amended by the 1967 Protocol Relating to the Status of Refugees). The Tribunal member pointed out to Mr Potier that a claimant for refugee status must establish that he or she has a well-founded fear of persecution, on one of the grounds specified in the Article, if returned to his or her country of nationality. Mr Potier informed the member that he made no such claims.

1. Mr Potier did not suggest otherwise at the hearing before Wilcox J, but put forward an argument that, on the proper construction of the Migration Act, the requirement that an applicant for a protection visa be a person to whom Australia has protection obligations under the convention was not a mandatory criterion for the grant of a protection visa. The argument was based on the fact that s 36(2) of the Act specifies that as "a criterion" for a protection visa.

1. Wilcox J stated that the argument put by Mr Potier had "the charm of ingenuity" and had been put well but that it was misconceived.

1. The Attorney General submitted that the proceedings were an abuse of process. The only basis identified for that contention was that the proceedings re-litigated issues already tried. So far as the material relied upon by the Attorney General reveals, that submission assumed that the application to the Federal Court should be characterised as a second application by Mr Potier for a protection visa for himself and the child. The basis for that assumption is not clear on the strength of the material before me. So far as I can discern from reading the judgments, Mr Potier made only one application for a protection visa for himself and his child. The decision of Einfeld J considered above was an application for judicial review of the decision to remove the child from the application. The application then appears to have been determined by the Refugee Review Tribunal on 12 May 2000, the decision being handed down on 30 May 2000 (at [2] of the decision of Wilcox J). Mr Potier then sought judicial review of that determination. I am not persuaded that it was an abuse of process to seek such review.

1. The Attorney General did not rely on any alternative provision of s 6. Accordingly it would not be appropriate for me to determine this issue on any other basis. I am constrained from holding that that the application determined by Wilcox J was a vexatious proceeding.

1. The next immigration proceeding instituted by Mr Potier was an application for an extension of the time within which to file and serve a notice of appeal from the judgment of Wilcox J considered above. The application was determined by Stone J on 27 February 2001: Potier v Minister for Immigration and Multicultural Affairs [2001] FCA 217 (pages 56 to 59 of exhibit A).

1. The notice of appeal was out of time only by some days. The application for an extension of time was not opposed for want of an adequate explanation of the delay but only on the grounds that Mr Potier had failed to demonstrate that the appeal had sufficient prospect of success for the appeal to proceed (at [7]). Stone J agreed with Wilcox J that, once Mr Potier had disclaimed any fear of persecution, his application for a protection visa had to fail. Her Honour specifically accepted, as Wilcox J had, that the requirement that the applicant be a person to whom Australia owes protection obligations was a mandatory criterion of an application for a protection visa. Her Honour said (at [8]):

I agree with Mr Potier that the fact that an interpretation is ingenious is not fatal to it. However ingenuity alone is not sufficient. It must be supported by legal analysis if the argument is to succeed.

1. The Attorney General again relies upon s 6(a) of the Vexatious Proceedings Act in respect of that application, on the basis that it sought to re-litigate an issue already tried. I do not think an appeal, or an application for leave to appeal or for an extension of the time within which an appeal may be brought, can properly be characterised as an attempt to re-litigate an issue already tried.

1. However, in this instance, the Attorney General has also relied separately on s 6(c) of the Vexatious Proceedings Act, contending that the application was instituted without reasonable ground. I would respectfully share the view of Wilcox J and Stone J that the application, although ingenious, was hopeless. It follows that I am satisfied that the application was a vexatious proceeding within the meaning of the Act.

1. The next immigration proceeding instituted by Mr Potier was a purported appeal from the decision of Stone J considered above. Mr Potier sought to commence the appeal by notice of appeal filed on 16 March 2001. The Minister sought an order that it be dismissed as incompetent (in the legal sense, meaning that it was not open to the Court to entertain it). The Minister's application was determined on 14 December 2001 by Weinberg, Hely and Allsop JJ: Potier v Minister for Immigration and Multicultural Affairs [2001] FCA 1770 (pages 60 to 64 of exhibit A).

1. The Court acceded to the Minister's application, dismissing the proceedings and ordering Mr Potier to pay the Minister's costs. The Court held that the appeal was incompetent. The basis for that conclusion was that, when Stone J dismissed the application for an extension of the time within which to bring an appeal, her Honour was exercising the appellate jurisdiction of the Court, with the result that any further appeal would duplicate that process.

1. The Court further held that, even if the appeal were competent, it should nonetheless be dismissed since Mr Potier's argument as to the proper construction of article 1A(2) was "devoid of merit".

1. The Attorney General relies on s 6(c) of the Vexatious Proceedings Act, that the proceeding was instituted without reasonable ground. I accept that submission. It follows that I am satisfied that the application was a vexatious proceeding within the meaning of the Act.

1. The Minister subsequently filed bills of costs in five separate proceedings in the Federal Court (presumably the five proceedings now relied upon as being vexatious, summarised above). Mr Potier wished to lodge a notice of objection to those bills. The Federal Court rules provided that the registrar was not to accept a notice of objection unless the applicant paid into the litigants' fund an amount of $1,250 as security for the cost of any taxation of a bill. Mr Potier (then serving the non-parole period of his first term of imprisonment) sought a waiver of that requirement. The registrar had a discretion to dispense with the requirement but, in the case of Mr Potier, refused to do so, considering that lack of funds was not in itself a reason for waiving security.

1. The next immigration proceeding instituted by Mr Potier was a notice of motion filed on 12 March 2004 challenging that decision. The notice of motion was determined by Stone J on 4 May 2004: Potier v Minister for Immigration and Multicultural Affairs [2004] FCA 520 (pages 65 to 69 of exhibit A).

1. In respect of those proceedings, the Attorney General relies upon s 6(c) of the Vexatious Proceedings Act, contending that the proceedings were instituted without reasonable ground. The discretion to dispense with the requirement to pay the amount required as security was contained in Order 1 Rule 8 of the Federal Court Rules. That rule conferred a general discretion to dispense with the requirements of the rules. The registrar had held that a lack of funds was not in itself a reason for exercising the discretion to waive security. Stone J evidently agreed, holding that the obligation should only be waived "for very compelling reasons". Her Honour concluded (at [17]):

For the reasons articulated by [the Deputy Registrar] I do not find that there are compelling reasons in this case to waive the obligation imposed by [the rules], much less is there reason to interfere with [the Registrar's] exercise of discretion.

1. Stone J noted that the application listed the child as an applicant. The child had been a co-applicant in one of the five proceedings in the Federal Court but no costs order was made against the child. Accordingly, Stone J ordered that the child be removed as a party in the proceedings before her Honour (the proceedings in which the child had been named were those determined by Weinberg, Hely & Allsop JJ - that Court did not remove the child as an applicant but dismissed the child's appeal).

1. It is convenient to consider the application heard by Stone J together with the next proceeding instituted by Mr Potier, which was a notice of appeal against her Honour's decision. The notice of appeal was determined on 19 November 2004 by Ryan, Lee and Merkel JJ: Potier v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 288 (pages 70 to 76 of exhibit A).

1. The Full Court noted that the application before Stone J was conducted as a review of the registrar's decision. The Court acknowledged that such a review is conducted on the merits, citing Mazukov v University of Tasmania [2004] FCAFC 159 at [21] to [26]. Stone J had not expressly referred to that principle. Although her Honour's judgment included reference to the issue whether there was reason to interfere with the registrar's decision, the Full Court was satisfied that her Honour had considered afresh whether the power to waive security should be exercised.

1. Although Stone J was not persuaded to waive the obligation to pay security, it does not follow that the application was instituted without reasonable ground. The registrar had noted that an issue sought to be raised by Mr Potier may have been appropriate to be determined on taxation but was not persuaded that that circumstance provided sufficient reason to waive the requirement for security. In recording the registrar's conclusion on that issue, the Full Court noted that, if it were accepted that substantial issues for determination on taxation had not been taken into account in the formation of the estimates of costs, that fact together with the impecuniosity of a party seeking to raise such issues would be relevant in determining whether in all the circumstances it would be appropriate to waive the requirement for security. As already noted, Mr Potier was at the time of the application serving a term of imprisonment. There does not appear to have been any contest as to his claimed impecuniosity.

1. The Full Court determined that the decision of Stone J was interlocutory and that leave was required to prosecute the appeal. The Court considered that the applicant had not raised any doubt as to the correctness of her Honour's decision and that it was not one from which leave to appeal should be granted.

1. It does not follow from the fact that Mr Potier was unsuccessful in each of those proceedings that they were brought "without reasonable ground" within the meaning of s 6(c) of the Vexatious Proceedings Act. The judgments reveal that Mr Potier had raised an issue that may have been appropriate to be determined on taxation but that he could not proceed to taxation because he could not pay the required security. I have not been persuaded by the Attorney General's submissions that Mr Potier's attempts in those proceedings to invoke the exercise of a discretion in his favour were vexatious.

Proceedings instituted by Mr Potier relating to the criminal proceedings against him

1. Mr Potier was arrested for the first two counts of soliciting to murder on 9 May 2000. The committal proceedings in respect of those charges were heard in the Local Court at Burwood on 2 November 2000. Mr Potier was legally represented in those proceedings. His lawyer made an application for a direction from the magistrate to call and cross-examine eight of the prosecution witnesses. The application was opposed by the Crown and evidently argued at some length. After a short break in the proceedings, the learned magistrate gave his decision refusing to give the direction sought. At the conclusion of the committal proceedings, the magistrate committed Mr Potier for trial.

1. Within two weeks after that date, the Crown Prosecutor found a bill of indictment against Mr Potier for the two offences. Five months later, Mr Potier filed an application for judicial review of the magistrate's decision refusing to give the direction that the witnesses be called and cross-examined. That is the first proceeding relating to the criminal proceedings relied upon by the Attorney General as vexatious.

1. The application was determined by O'Keefe J: Potier v DPP [2001] NSWSC 514; (2001) 123 A Crim R 176 (pages 77 to 83 of exhibit A). Mr Potier sought orders in the nature of a prerogative writ. The test to be applied by the magistrate in determining whether to give the direction sought required either "special reasons why, in the interests of justice, the witness should attend to give oral evidence" (in the case of a victim) or "substantial reason why, in the interests of justice, the witness should attend to give oral evidence" (in the case of a witness other than a victim) (at [9]).

1. O'Keefe J held (at [30]):

The determination by the magistrate did not in my opinion fall within the ambit of a decision which amounted to a non-performance, actual or constructive, of the duty to consider and determine which is inherent in section 48E. He applied the words of the statute to the facts before him, adopted the test in the authorities apparently agreed by the parties and came to his conclusion.

1. O'Keefe J further noted that the relief sought by Mr Potier was discretionary. His Honour indicated that, even if the basis for the relief sought were established, he would not have exercised his discretion to grant it, largely for the reasons identified on behalf of the Director of Public Prosecutions. They were that the delay between the decision and the application for review was unexplained; that to grant the relief sought would intervene in the criminal justice process, contrary to the traditional disinclination of superior courts to do so; that it would be likely to result in another trial date's being aborted where two earlier dates for trial had already been vacated; that to remit the matter to the magistrate would serve no real function, since his Honour had already determined to commit Mr Potier for trial and that any contrary determination would be of no effect since the Crown had found a bill of indictment; the fact that the committal proceeding was at an end, having concluded with the magistrate's executive act of committing Mr Potier for trial and finally the fact that any prejudice could be addressed by seeking a Basha inquiry which would enable Mr Potier to cross-examine the relevant witnesses in the absence of the jury (named after the decision in Basha v R (1989) 39 A Crim R 337).

1. The force of those considerations was overwhelming. I accept the submission on behalf of the Attorney General that the application was instituted without reasonable ground and that the proceedings were vexatious within the meaning of the Vexatious Proceedings Act.

1. Before turning to the remaining applications relating to the criminal proceedings relied upon by the Attorney General in support of the present application, it may be helpful to explain the Crown case put against Mr Potier in support of the two charges of soliciting to murder. As already noted, the charges were based, in part, on conversations alleged to have taken place between Mr Potier and the woman he had met at an Internet café in Melbourne (I will refer to her as the witness) and also on conversations between Mr Potier and an undercover policeman.

1. At Mr Potier's trial, the Crown brought forward tapes which were alleged to be recordings of those conversations. Mr Potier's defence included the contention that those recordings had been altered and that he had not said the things played to the Court in the way in which they had been presented to the Court. He contended that the recordings had been created by persons unknown. All of the impugned recordings were played to the jury.

1. Mr Potier maintains that police obtained a "web trace" of the telephone of the witness. He further contends, in short, that information concerning the web trace was not made available to the defence until close to the end of his trial and that the information provided at that late stage supports his contention that the evidence of tape recordings relied upon by the Crown was not reliable. Specifically, Mr Potier contends that a number of the calls allegedly made to the witness do not appear on the web trace (and so could not have been made by him). He further alleges that there are calls which do appear on the web trace but which were not transcribed or submitted into evidence at his trial, suggesting selectivity in the presentation of the Crown case.

1. Mr Potier further maintains that, while he was in detention at Villawood, he had access to only three individual pay phones. He says that web traces for those three pay phones show that he did not contact the witness at the times or for the duration claimed by the informant, Detective Laidlaw. Specifically, he says that the five calls absent from the witness's web trace are also absent from the web traces on the pay phones, which I understand he would say confirms his contention that those phone calls were never made.

1. Mr Potier does not appear to allege that he did not contact the witness by telephone at all during the critical period at Villawood (2 May 2000 to 8 May 2000). Rather, his contention is that the web trace records, to which he did not have access until shortly towards the end of his trial, corroborate his contention that the alleged recordings were altered and were unreliable (I note that there is reference in one of the judgments of the Court of Criminal Appeal to his having spoken to the witness at some point using the telephone of another inmate - if that is right, it may provide an explanation for at least some of the alleged anomalies in the web trace that does not appear to be grappled with in Mr Potier's account of events: see R v Potier [2004] NSWCCA 136 at [24].

1. Mr Potier was arraigned on the indictment alleging the first two offences of soliciting to murder on 19 September 2001 in the District Court. On that date, he sought rulings from the trial judge to have the evidence of the undercover policeman excluded at the trial on the basis that it was unlawfully or improperly obtained. The judge gave rulings indicating that he intended to allow the evidence to be introduced before the jury at the trial.

1. Mr Potier made an application to Court of Criminal Appeal pursuant to s 5F of the Criminal Appeal Act 1912 challenging those rulings. That is the next vexatious proceeding relied upon by the Attorney General in the present application.

1. The application was determined on 5 October 2001: R v Potier [2001] NSWCCA 404 (pages 84 to 87 of exhibit A). Mr Potier required leave to bring the application. The court noted that the rulings under challenge were rulings as to evidence and that, in accordance with well-settled authority, such rulings do not enliven the jurisdiction under s 5F. The court accordingly refused leave to appeal: at [17] per Studdert J; Wood CJ at CL and Bell J agreeing at [18] and [19] respectively.

1. I accept, as submitted on behalf the Attorney General, that the application was instituted without reasonable ground and was accordingly vexatious as that term is defined in the Vexatious Proceedings Act.

1. On 16 October 2001 Mr Potier was convicted on both counts on the indictment. Since that date, his entitlement to commence civil proceedings has been governed by the Felons (Civil Proceedings) Act, which imposes a requirement for leave to institute any civil proceedings. However, whether due to oversight or otherwise, that point was not taken against Mr Potier in a number of proceedings he instituted after that time.

1. On 2 April 2002 Mr Potier was charged with a further offence of soliciting to murder relating to his ex de facto wife (to which I will refer as "the third charge"). The third charge was alleged to have been committed between 1 January and 8 February 2002. The Crown alleged that, during his trial for the first two counts, Mr Potier befriended another inmate in a prison van travelling between Court and gaol. The Crown case was that Mr Potier sought the prisoner's opinion as to his prospects of appeal and his likely sentence. The prisoner later reported that Mr Potier had said that the only solution to avoid a lengthy gaol sentence and to obtain custody of the child was to eliminate his former de facto. Further discussions were recorded by means of a listening device installed in the prisoner's cell.

1. On 10 May 2002 Mr Potier was sentenced for the first two charges to concurrent sentences of imprisonment for 6 years and 8 months commencing on 8 May 2000 with a non-parole period of five years.

1. The next proceeding relied upon by the Attorney General as vexatious is an application in the Supreme Court determined by Bell J on 25 June 2004 in Potier v Magistrate Maughan [2004] NSWSC 590 (pages 88 to 96 of exhibit A). The Felons (Civil Proceedings) Act was not raised in those proceedings.

1. In July 2003 Mr Potier had attempted to commence criminal proceedings against Detective David Laidlaw, the informant in the criminal proceedings against him. In a statement of facts evidently prepared by himself, Mr Potier alleged that Detective Laidlaw had deliberately withheld information concerning the web trace until the penultimate day of the Crown case at the trial. Mr Potier alleged that, in doing so, Detective Laidlaw had committed an offence of attempting to pervert the course of justice contrary to s 319 of the Crimes Act 1900.

1. A deputy registrar in the Local Court refused to sign the statement of facts as a court attendance notice. The reason recorded for the refusal was that the deputy registrar was of the opinion that the proceedings were frivolous, vexatious, without substance or had no reasonable prospect of success. Mr Potier applied for a review of that decision by a magistrate (the appropriateness of that course does not appear to have been in issue: but cf Potier v Magistrate O'Shane & Anor [2008] NSWSC 141 considered below). The magistrate also refused to issue the court attendance notice. Mr Potier then filed a summons in the Supreme Court seeking an order that the magistrate be directed to issue the court attendance notice or, in the alternative, that the Supreme Court issue the notice. Mr Potier clarified during argument that the application in the Supreme Court was not an appeal but sought relief in the nature of the prerogative writs in accordance with s 69 of the Supreme Court Act 1970.

1. The procedure for a private informant to commence proceedings alleging the commission of an indictable offence had changed during Mr Potier's attempts to commence proceedings against Detective Laidlaw. Under the old procedure the requirement was for the informant to lay an information before a justice in accordance with the provisions of s 22 of the Justices Act 1902. Mr Potier conceded during argument before Bell J that the evidence fell short of establishing that he had succeeded in transmitting any such document to the chamber magistrate or registrar of the Court (at [21]).

1. The principal issue determined by Bell J related to the new procedure, which required the private informant to issue a court attendance notice which then had to be signed by a registrar of the court. The Local Courts (Criminal and Applications Procedure) Rule 2003 (now repealed) required the registrar not to sign a court attendance notice if he or she was of the opinion that the proceedings were frivolous, vexatious, without substance or had no reasonable prospects of success (clause 57).

1. Mr Potier's document was placed before the registrar after the commencement of the new scheme. As already noted, the registrar formed the relevant opinion and accordingly was required not to sign the court attendance notice. The application determined by the magistrate sought a review of that decision in accordance with the provisions of clause 61 of the Local Courts (Criminal and Applications Procedure) Rule 2003. The nature of such a review is not addressed in either the magistrate's reasons or in the judgment of Bell J. As with the previous matter, the appropriateness of seeking a review under that rule does not appear to have been in issue: but cf Potier v Magistrate O'Shane & Anor considered below.

1. In his reasons for refusing to issue the court attendance notice, the magistrate said:

The two issues that are raised by the facts that you put before the registrar and now the Court are firstly, the admissibility or otherwise of evidence in the criminal trial, and that has been had. And secondly, the veracity or otherwise of that conviction. These are not matters in my view which would substantiate the issue of a court attendance notice ... to bring the person Laidlaw before the court to answer the charge. In my view the application is vexatious and certainly would have no reasonable prospect of success if brought before the Court.

1. Bell J was not satisfied that those remarks revealed that the magistrate had misunderstood the nature of his jurisdiction in any of the ways identified in the decision of the Court of Appeal in Saffron v DPP (1989) 16 NSWLR 397. Accordingly, her Honour held that Mr Potier had not made good the claim for relief in the nature of mandamus, certiorari or otherwise.

1. The Attorney-General submits that the proceedings in the Supreme Court were vexatious within the meaning of sections 6(b) and 6(d) in that they were instituted or conducted to harass or annoy Detective Laidlaw. Whilst the proceedings may have been misconceived or without substance, I do not think I can conclude on the strength of the limited evidence before me that that is the case.

1. Alternatively, the Attorney General submits that the proceedings were vexatious within the meaning of s 6(c) in that they were instituted without reasonable ground. Having regard to the way in which the material relied upon on behalf of the Attorney General was presented (the proof of each "proceedings" consisting in a copy of the judgment determining the relevant application), it is not entirely clear whether the contention was that the underlying application to have a court attendance notice against Detective Laidlaw was without reasonable ground or, alternatively, whether the submission relates to the application in the Supreme Court for relief in the nature of the prerogative writs. A consideration of the statement of facts relied upon by Mr Potier in support of the issue of a court attendance notice (which is set out in full at [4] at the judgment of Bell J), reveals that the material relied upon by Mr Potier lacked any reasonable ground for the contention that Detective Laidlaw had any intention to pervert the course of justice. On that basis, I would accept that the underlying application to have a court attendance notice issued was without reasonable ground but I do not think such an application constitutes "proceedings" within the meaning of s 4 of the Vexatious Proceedings Act.

1. The application determined by Bell J was unsuccessful but, as already noted, it does not necessarily follow that it was without reasonable ground. The issue in that application was whether the magistrate applied a wrong test, misconceived his duty, did not apply himself to the question which the law prescribed or misunderstood the nature of the opinion he had to form. Bell J was not satisfied that he did. However, having considered the terms in which his Honour expressed his reasons (set out at [105] above), I am not persuaded that the matter was unarguable.

1. Although the magistrate expressed his conclusion in the terms of clause 57 of the Local Courts (Criminal and Applications Procedure) Rule (concluding that the application was vexatious and would have no reasonable prospect of success), his Honour's opinion appears (according to the stated reasons) to have been directed to the issue whether the conviction of Mr Potier should stand, whereas Mr Potier's application required attention to be directed to the unrelated issue whether there was a basis for contending that Detective Laidlaw had committed an offence. Accordingly, in my view, there was a respectable basis for putting the argument rejected by Bell J. I am not persuaded that the proceedings in the Supreme Court were vexatious within the meaning of the Act.

1. The next vexatious proceeding relied upon by the Attorney General relates to a similar round of events arising from Mr Potier's attempt to commence criminal proceedings against the Crown Prosecutor who appeared at his trial and the solicitor who instructed the Crown. As in the case of Detective Laidlaw, Mr Potier sought the issue of a court attendance notice. That was refused by a registrar. An application for a review of that decision by a magistrate was also refused. Mr Potier then brought an application in the Supreme Court for prerogative relief against the magistrate. The application was determined by Kirby J on 12 August 2004: Potier v Huber [2004] NSWSC 720; (2004) 148 A Crim R 399 (pages 97 to 107 of exhibit A). The Felons (Civil Proceedings) Act was not raised in those proceedings.

1. The application to the registrar sought the issue court attendance notices against the prosecutor and his instructing solicitor in respect of an alleged offence of concealing evidence contrary to s 317 of the Crimes Act 1900. The fact sheet prepared in support of the alleged offence contended that the witness in the trial (the Internet café proprietor) had provided a statement to the prosecutor and the solicitor disclosing that she had a close ongoing friendship with a detective in the Australian Federal Police to whom she had spoken regularly during her dealings with Mr Potier. The statement was obtained following a meeting with the prosecutor on 31 July 2001 but was not prepared until 10 September 2001. It was given to the defence on 12 September 2001.

1. Mr Potier alleges that the AFP officer would have been important witness who could corroborate or contradict the contested evidence of the witness as to conversations she alleges she had with Mr Potier before police began recording their exchanges. The statement of facts alleged that the prosecutor and the solicitor deliberately suppressed and withheld all details of the potential witness (named Draffin) from 31 July until 10 September 2001.

1. The reasons of the magistrate who refused the review of the registrar's decision concluded as follows (emphasis added):

The facts sheets disclose allegations which may, indeed, found the basis for an appeal and I note what has been put by Mr Potier in his submissions that it is not for me to have regard to any exercise of discretion with respect to any judicial act, that I am not to turn my mind in essence to anything other than to be a clearing house, but it is quite clear that I must be satisfied that there is some substance and that there is a prospect of success and I am not satisfied and the application is refused.

1. Mr Potier was represented by a barrister in the proceedings before Kirby J. The first point argued was that the learned magistrate mistook the nature of her function. Specifically, the barrister relied on authority for the proposition that, under the Justices Act 1902, the role of the Justice of the Peace did not involve any exercise of discretion. The Justice of the Peace was not to concern himself with the merits of the complaint. Kirby J held that, following the introduction of the new regime for private prosecutions, the function of the registrar was quite different. His Honour held that the magistrate reviewing the registrar's decision was obliged to address the question of merit (taking "the case" at its highest) to determine whether it was without substance and whether there were reasonable prospects of success.

1. The second ground argued was that the magistrate asked herself the wrong question when she stated "I must be satisfied that there is some substance and that there is a prospect of success". Counsel for the defendants acknowledged that her Honour had not formulated the test in the words of rule 57, but submitted that she had in substance addressed the correct test. Kirby J accepted that argument.

1. Finally, counsel for Mr Potier submitted that there was a constructive failure to exercise jurisdiction in that there was no evidence capable of satisfying the test in rule 57 (which prohibits the registrar from signing a court attendance notice if of the opinion that the proceedings are frivolous, vexatious, without substance or have no reasonable prospects of success). Kirby J held that there was material before the magistrate on the basis of which she could have formed that opinion. However, as already noted, it does not follow that the argument put forward on behalf of Mr Potier was without reasonable ground. Particularly noting that it was conceded on behalf of the defendants that the magistrate had not formulated the test in the terms of the rule, I am not persuaded that the application determined by Kirby J was brought without reasonable ground or was otherwise a vexatious proceeding within the meaning of the Act. In reaching that conclusion, as with the attempt to prosecute Detective Laidlaw, I am not expressing any view as to the proposed charges but only as to the merits of the application for prerogative relief, which was concerned exclusively with the magistrate's discharge of her function.

1. On 25 August 2004, the Court or Criminal Appeal determined the appeals arising from Mr Potier's conviction and sentence for the first two charges of soliciting to murder: R v Potier [2004] NSWCCA 136 (pages 108 to 122 of exhibit A). The Attorney General does not rely upon the appeals instituted by Mr Potier as vexatious proceedings in the present application. The Court refused Mr Potier's application for leave to appeal against the severity of the sentences imposed. The Court allowed a Crown appeal against the leniency of those sentences and imposed, instead, the following sentences:

In relation to count 2, a term of imprisonment for 6 years and 8 months commencing on 8 May 2000 with a non-parole period of 5 years;

In relation to count 1, a term of imprisonment for 6 years and 8 months commencing on 8 May 2002 with a non-parole period of 4 years and 3 months.

1. The principal difference in the sentences imposed by the Court of Criminal Appeal was to accumulate the terms imposed for the two separate offences by two years. Mr Potier had also filed a conviction appeal but was not in a position to pursue that appeal at that stage. The Court determined that it should be struck out of the list subject to its being restored in the event of the Court being satisfied that it was ready to proceed.

1. Following the determination of the appeals against sentence, but before seeking to have his conviction appeal re-listed in the Court of Criminal Appeal, Mr Potier made an application to the New South Wales Court of Appeal for prerogative relief seeking to have his convictions quashed on the basis that his trial constituted a denial of natural justice and so rendered the trial a nullity as being in excess of jurisdiction. The basis for that contention was, again, the complaint that police and the prosecution were in possession of information relevant to the issues at the trial but withheld or failed to disclose that information to him.

1. The application in the Court of Appeal was determined on 26 August 2004: Potier v District Court of New South Wales [2004] NSWCA 303 (pages 123 to 125 of exhibit A). It is not clear whether the Felons (Civil Proceedings) Act was raised by the defendant in those proceedings. The requirement for leave was noted by the Court but not determined.

1. The Court noted that there were other impediments to the application including the fact that the relief sought was discretionary and that Mr Potier's appeal against his convictions was still pending in the Court of Criminal Appeal. There was a question as to whether the Court had jurisdiction to grant the relief sought in any event. The Court dismissed the application.

1. I accept, as submitted on behalf of the Attorney General, that the application was brought without reasonable ground and amounted to an abuse of process in circumstances where Mr Potier's appeal against conviction was pending in the Court of Criminal Appeal. On that basis, I am satisfied that the proceeding was a vexatious proceeding within the meaning of the Vexatious Proceedings Act.

1. In September 2004, Mr Potier applied for bail in respect of the third charge (and that charge only). He was at that time serving the terms of imprisonment imposed following his conviction on the first two charges. The application for bail was refused by a magistrate on 13 September 2004.

1. On 1 March 2005, Johnson J determined an application by Mr Potier in the Court of Criminal Appeal in respect of the production of documents by Detective Laidlaw (unreported, pages 126 to 130 of exhibit A). Although the application was unsuccessful, it is not relied upon by the Attorney General as a vexatious proceeding.

1. Mr Potier then made an application to the Supreme Court for an order of certiorari, contending that he had been denied procedural fairness in the hearing of the bail application. The application was determined by Simpson J on 25 November 2004: Potier v Magistrate Moore [2004] NSWSC 1131 (pages 171 to 177 of exhibit A). That is the next proceeding relied upon by the Attorney General as vexatious.

1. That appears to be the first occasion on which the requirement for leave under the Felons (Civil Proceedings) Act was raised and determined against Mr Potier. Simpson J held that even if the proceedings had been properly instituted in accordance with that Act, they would constitute an abuse of process. The basis for that conclusion was, in short, that the application was premised on the alleged failure of the Local Court to exercise its jurisdiction to grant bail in relation to the two charges in respect of which convictions had been entered and an appeal was pending in the Court of Criminal Appeal, whereas Mr Potier had made no application for bail in respect of those charges. I would respectfully accept the conclusion reached by Simpson J that the proceedings, if properly instituted, would have constituted an abuse of process. On that basis, I am satisfied that the proceedings were vexatious within the meaning of the Vexatious Proceedings Act.

1. On 11 January 2005, Mr Potier was committed for trial in respect of the third charge of soliciting to murder. He then instituted proceedings in the Supreme Court seeking leave to appeal against orders made in the committal proceedings and seeking prerogative relief in respect of those proceedings. Leave under s 4 of the Felons (Civil Proceedings) Act to institute those proceedings was granted by McDougall J on 27 January 2005 (in an ex parte application brought during the Court vacation).

1. The substantive application was determined by Johnson J on 13 April 2005: Potier v Magistrate Maloney & Ors [2005] NSWSC 336 (pages 178 to 190 of exhibit A). Mr Potier alleged that the magistrate had fallen into error in three respects. His arguments, and Johnson J's analysis of them, are set out in detail in the judgment at [52] to [67]. I do not think it is necessary for present purposes to descend into the detail of those arguments. The application was ultimately rejected for substantially the same reasons as those identified by O'Keefe in rejecting Mr Potier's challenge to his committal for trial in respect of the first two charges. In particular, Johnson J noted, as O'Keefe J had, that the fact that a bill of indictment had been found following the committal by the magistrate weighed against the grant of the discretionary relief sought (at [68]).

1. In submitting that the application was vexatious, the Attorney General relied upon the fact that Johnson J noted that a magistrate's decision to commit for trial is purely executive and is not amenable to correction by the Supreme Court in the exercise of its supervisory jurisdiction by way of certiorari (at [43]). Noting that O'Keefe J had made the same point in relation to the challenge to the previous committal, the Attorney General submitted that the application determined by Johnson J was an abuse of process since it was an attempt to re-litigate an issue already tried. In light of the fact that other forms of relief were sought by Mr Potier, the whole of the proceeding cannot be characterised in that way. However, having regard to the strong discretionary factors against granting the relief sought, I would accept that the proceedings were instituted without reasonable ground and are accordingly vexatious within the meaning of the Act.

1. The next proceeding relied upon by the Attorney General as vexatious is an application for bail made by Mr Potier in the Court of Criminal Appeal. The application was determined on 6 July 2005: R v Potier [2005] NSWCCA 256 (pages 131 to 134 of exhibit A).

1. The application was originally constituted as a purported appeal against an earlier decision refusing bail. The decision under appeal was that of Johnson J sitting in the Supreme Court. The Court of Criminal Appeal held that, insofar as the application sought review of that decision pursuant to s 46 of the Bail Act 1978, it was misconceived. However, since a Court had been convened to determine the matter and Mr Potier was before the Court, the Court accepted that it should exercise its jurisdiction to determine an original application for bail pending the hearing of an appeal to the Court under s 30AA of the Bail Act. That section requires an applicant to demonstrate special or exceptional circumstances to justify the grant of bail.

1. Mr Potier relied on two matters. The first may be regarded as specious. He argued that the indictment alleged that he had solicited an undercover operative with the assumed name of "M" to murder his former partner, where as the evidence at trial indicated that the actual perpetrator of the intended killing was not "M" but a person referred to as "Jacko". It is clear, however, that "M" was, according to the Crown case, the person Mr Potier solicited to make the relevant arrangements. The form of the indictment said nothing of the strength of the Crown case.

1. As to the second point, while the position is not entirely clear from the judgment, it appears that Mr Potier again raised the issue of the alleged withholding of evidence relevant to his challenge to the reliability of the recorded conversations. The Court held that the two grounds relied upon by Mr Potier were "so far short of indicating a high probability of success" that "the barrier provided by s 30AA could not possibly be regarded as overcome". Whilst I have some reluctance in reaching the conclusion that an application for bail can amount to a vexatious proceeding, I would have to accept that those remarks reveal that the application was instituted without reasonable ground, with the result that the application must be regarded as a vexatious proceeding within the meaning of the Vexatious Proceedings Act.

1. As at the date of determination of the bail application, Mr Potier's appeal against his convictions for the first two charges of soliciting to murder had been listed for hearing on 30 September 2005. On 16 September 2005 the Court of Criminal Appeal determined an application by Mr Potier that two named persons be required to attend and give evidence at the hearing of that appeal: R v Potier [2005] NSWCCA 336 (pages 135 to 142 of exhibit A). That is the next proceeding relied upon by the Attorney General as vexatious.

1. The applications were determined by R A Hulme J sitting as a single judge of the Court of Criminal Appeal: Potier v R [2010] NSWCCA 231 (pages 216 to 220 of exhibit A). Although by that time the conviction appeal following the first trial had been determined, the issue of the reliability of the recordings of the intercepted conversations remained relevant. That is because, in the second trial, the Crown had relied upon Mr Potier's conduct giving rise to the first trial as tendency and coincidence evidence.

1. R A Hulme J accepted that there is occasion where it would be a legitimate forensic exercise for an applicant to cross-examine an appropriate witness on a question whether there has been complete compliance with an order to produce. However, his Honour was not persuaded that there had been anything other than real and acceptable compliance in the case before him. His Honour held that the matters about which Mr Potier wished to cross-examine the technical officer were beyond the scope of what was permissible and appropriate in such circumstances.

1. As to the application in respect of the juror, R A Hulme J noted that there were "insurmountable problems" for the applicant. His Honour reiterated the remarks of Buddin J in the earlier application that it is beyond question that it is impermissible for a court to receive evidence as to the discussions and deliberations of jurors. His Honour further noted that any evidence Mr Potier did manage to obtain would be of no real value, since the juror would be reconstructing his own thoughts well after the event and speculating as to the thoughts of the other jurors. Finally, his Honour noted that the deliberations of the jurors were entirely irrelevant to the fresh evidence or new evidence ground of appeal. In assessing such a ground, the Court of Criminal Appeal is required to make its own assessment of the evidence and consider what impact it may have had upon the outcome of the trial.

1. In my view that reasoning, with which I would respectfully agree, reveals that Mr Potier's applications were instituted without reasonable ground.

1. R A Hulme J also determined an application by Mr Potier for bail pending the determination of his appeal against his conviction in the second trial: Potier v R [2010] NSWCCA 234 (pages 227 to 231 of exhibit A). As in the earlier application, s 30AA of the Bail Act applied, requiring Mr Potier to satisfy the Court that "special or exceptional circumstances" existed justifying the grant of bail.

1. The first basis for the application was an alleged factual error in the judgment of the Court of Criminal Appeal dismissing Mr Potier's conviction appeal. R A Hulme J noted that the judgment of McClellan CJ at CL, with whom the other two members of the Court agreed, proceeded upon an understanding that a document from Telstra alleged to be "fresh evidence" had in fact been disclosed to the defence before the trial. R A Hulme J said (at [12]):

That would appear to be unlikely, given that the document was sought from Telstra by the police officer in charge of the case by a letter which expressed the need for urgency with the statement, "the defence (sic) likely to conclude their case tomorrow, Thursday, 11th October 2001". The document provided by Telstra in fact is dated 11 October 2001.

There may have been some confusion with another document which was in issue in the appeal. There was a complaint about whether Mr Potier's representatives had been forewarned that the prosecution would be calling a witness from Optus Cable and Wireless. It was in relation to that issue that counsel for the Crown on the appeal tendered correspondence which was said to show that a statement by the witness had been served prior to the trial.

1. However, R A Hulme J noted that, before any conclusion could be reached that Mr Potier's confidence in success on appeal was well founded, he would need to establish "a high likelihood" that a number of things would occur, perhaps most importantly including that the High Court would grant an extension of the time within which to apply for special leave after the lapse of so much time since the judgment of the Court of Criminal Appeal and that the Court would regard the fresh evidence as being of sufficient significance that it would grant special leave to appeal and allow the appeal and remit the matter to the Court of Criminal Appeal for re hearing. R A Hulme J held that Mr Potier's evidence fell "well short" of establishing any of the required matters.

1. The second basis for the bail application was the repeated complaint that Mr Potier's conditions in custody were impeding his preparation of his appeal. His Honour accepted that there had been some limitations but not to any undue extent.

1. The final basis for the application related to Mr Potier's need to participate in a hearing in family law proceedings in London. R A Hulme J said that he would certainly not grant bail to Mr Potier in order to permit him to travel to London to appear. It was not clear whether facilities could be made available for him to appear by video link.

1. The application for bail was refused. However, in light of the complexity of the issues surrounding the alleged factual error in the judgment dismissing the appeal against conviction, I am not persuaded that the application was instituted without reasonable ground. I do not consider the bail application to have been a vexatious proceeding within the meaning of the Act.

1. As already noted, the decision of R A Hulme J determining Mr Potier's application to have the technical officer and the juror attend to give evidence was made by his Honour sitting as a single judge of the Court of Criminal Appeal. Upon the refusal of that application, Mr Potier was entitled to have the application determined by the Court constituted by three judges: s 22(2) of the Act. Mr Potier exercised that right and his application was determined on 28 July 2011: R v Potier [2011] NSWCCA 170 (pages 221 to 226 of exhibit A).

1. I wrote the main judgment in that case. I was of the view that both applications should be dismissed, for substantially the reasons given by R A Hulme J sitting alone. Whealy JA and Schmidt J agreed at [1] and [36] respectively. It follows that I am satisfied that the application was instituted without reasonable ground.

1. The next judgment (in chronological order) is the decision of the Court of Criminal Appeal in Potier v R [2011] NSWCCA 204 (pages 232 to 244 of exhibit A). That was a judgment in an appeal instituted by Mr Potier seeking review of the bail application determined by R A Hulme J considered above. The judgment is not included in the Attorney General's chronology of proceedings relied upon as vexatious and does not appear to be relied upon as such. Judging from the content of the judgment (which deals primarily with the Court's jurisdiction to undertake the review sought) it reveals no basis for concluding that the application was vexatious.

1. The next proceeding instituted by Mr Potier relating to the criminal proceedings against him was an application for leave under the Felons (Civil Proceedings) Act to commence proceedings against the Legal Aid Commission, in effect seeking prerogative relief on the strength of an asserted entitlement to have all of his legal aid applications then pending funded without delay. The application was determined by Johnson J on 1 December 2011: Potier v Legal Aid Commission of New South Wales [2011] NSWSC 1066 (pages 245 to 251 of exhibit A).

1. Section 5 of the Felons (Civil Proceedings) Act provides that the Court shall not grant leave under that Act unless satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceeding. Johnson J found that Mr Potier had not demonstrated an arguable case to as to satisfy the requirement of prima facie ground for the proceedings (at [50]). His Honour did not consider it necessary to determine whether the proceedings were an abuse of process (at [51]).

1. His Honour noted that the Legal Aid Commission is charged with the responsibility of allocating necessarily limited resources in accordance with its statutory duties and the priorities it establishes from time to time (at [8]). In that statutory context, and after considering the five applications then on foot, his Honour was not satisfied that there was any arguable case for the prerogative and declaratory relief sought. I would respectfully agree with his Honour's reasoning on that issue and accordingly conclude that the application was vexatious within the meaning of the Vexatious Proceedings Act.

1. In early January 2012, Mr Potier made another application for the issue of a writ of habeas corpus. That application was determined by Garling J on 16 March 2012: Potier v The General Manager NSPC, Area 2 LongBay Correctional Centre [2012] NSWSC 233 (pages 1 to 9 of exhibit B). His Honour dismissed the application.

1. The application was based on substantially the same grounds as those relied upon in support of the applications determined by Rothman J and Hidden J (considered above). Garling J was not satisfied that Mr Potier had put any material before the Court to suggest that his conviction was a nullity; nor that there was a high probability that either of his convictions would be set aside or that his ongoing imprisonment was a manifest injustice against which the Court would grant relief. His Honour dismissed the application. In doing so, his Honour noted the two earlier applications and said (at [57]):

Although I have not relied upon the fact that those applications have been unsuccessful, the fact is that my conclusion is not inconsistent with those decisions. The same result has been reached in each case by reason of an application of the same legal principles, namely that until Mr Potier can show that his imprisonment is unlawful because his conviction (and sentence) for the second offence is a nullity, there is no basis for his release from custody.

(His Honour's reference there to "the second offence" was a reference to the offence to which I have referred as the third offence.)

1. I am satisfied that the application was instituted without reasonable ground and accordingly that it was a vexatious proceeding within the meaning of the Act.

1. On 22 August 2012, Mr Potier made an application for referral to the pro bono legal panel in respect of these proceedings. The application was determined by Schmidt J, who made the referral sought: Attorney General in and for the State of New South Wales v Potier [2012] NSWSC 970 (pages 11 to 15 of exhibit C). The Attorney General does not rely upon that application as a vexatious proceeding.

1. Mr Potier sought to appeal out of time against the decision of Garling J refusing to issue a writ of habeas corpus. His application for an extension of the time to file and serve a notice of appeal was refused by the President of the Court of Appeal on 23 October 2012: Potier v General Manager, Dawn De Loas Correctional Centre [2012] NSWCA 352 (pages 16 to 19 of exhibit C; and see the related procedural judgment in Potier v General Manager, Dawn De Loas Correctional Centre (No 2) [2012] NSWCA 353 at pages 20 to 21 of exhibit C).

1. Allsop P noted that the difficulty with any application for a writ of habeas corpus by Mr Potier was the order of sentence which was made by a superior court of record and which has not been set aside. His Honour expressed the view that none of Mr Potier's submissions identified any coherent basis for dealing with that fundamental difficulty. On the strength of those remarks, which echo remarks made before to Mr Potier in respect of earlier applications, I am satisfied that the application for an extension of time was also instituted without reasonable ground and so was vexatious within the meaning of the Act.

1. After the hearing of the present application, the Attorney General sought leave to reopen his case to adduce evidence of an application by Mr Potier to reinstate his application for special leave to appeal to the High Court against the dismissal of his appeal against conviction for the first two charges of soliciting to murder. The application was heard by the High Court (per Heydon J) on 11 February 2013. The application for special leave to appeal had been deemed abandoned in September 2012, after Mr Potier had failed to comply with directions as to the filing of the required documents.

1. Heydon J was not persuaded that there was a sufficient explanation for the delay and dismissed the summons.

Administrative Decisions Tribunal Proceedings

1. On 16 June 2009, the Administrative Decisions Tribunal determined an application by Mr Potier for review of a determination relating to an application for access to documents made under the Freedom of Information Act 1989. There was no appeal from that determination. However, following the Tribunal's principal decision, Mr Potier made three further applications: an application for his costs; an application that the Tribunal refer the conduct of certain officers of the agency to the Supreme Court as involving possible contempt and an application for the Tribunal to report to the Minister an alleged failure by officers to act in good faith in exercise of their power. The Tribunal made orders refusing all three applications.

1. Over 100 days after receiving the decision, Mr Potier lodged a notice of appeal in respect of the first two of those determinations. The appeal was out of time.

1. The appeal was determined by the President of the Tribunal, K O'Connor DCJ, on 15 February 2010: Potier v Department of Corrective Services (GD) [2010] NSW ADTAP 8 (pages 252 to 256 of exhibit A). The President granted leave to prosecute the appeal out of time but dismissed the appeal. His Honour noted that both matters raised by Mr Potier involved discretionary judgments on the part of the Tribunal.

1. The challenge to the costs decision required leave. The President did not consider it to be in the public interest for leave to be granted on that occasion. As to the refusal to report for contempt, the President noted that the discretion to report was broad. His Honour doubted whether an appeal panel would intervene and accordingly concluded that the case had no apparent prospects of success on either point.

1. Mr Potier filed a summons in the Court of Appeal seeking leave to appeal from that decision and, if necessary, leave to commence the proceedings under the Felons (Civil Proceedings) Act. Those applications were determined by Handley AJA on 28 April 2011: Potier v Director General, Department of Justice and Attorney General [2011] NSWCA 105 (pages 257 to 260 of exhibit A).

1. Handley AJA held that, contrary to Mr Potier's submissions, leave to commence the proceedings was required under the Felons (Civil Proceedings) Act (noting, indeed, that acceptance of Mr Potier's argument would put him out of court: at [11]). His Honour held that Mr Potier had not established a prima facie ground for concluding that the decision of the President was affected by legal error. As to the refusal to refer for contempt, his Honour found that Mr Potier had no personal right to challenge the decision. His Honour concluded that the proposed proceedings would be an abuse of process. I would respectfully agree with that conclusion and hold that both proceedings were vexatious within the meaning of the Act.

Conclusion as to vexatious proceedings

1. Although I have not been persuaded that each of the proceedings relied upon by the Attorney General as vexatious in truth bears that characterisation, it may be accepted that a significant number over a significant period were vexatious proceedings within the meaning of the Act. I am satisfied that Mr Potier has frequently instituted or conducted vexatious proceedings in Australia and, accordingly, that the power to make an order under s 8 of the Act is enlivened.

1. It remains to consider whether the Court's discretion to make a vexatious proceedings order should be exercised in the circumstances of the present case. In support of the contention that it should, the Attorney General relied upon the public interest in protecting the administration of justice from frequent vexatious proceedings, the lengthy history of Mr Potier's vexatious litigation and the recent frequency of such proceedings.

1. Mr Licha of counsel, who appeared pro bono for Mr Potier, pointed to a number of important considerations militating against the making of an order. Before turning to those, it is necessary to consider a threshold submission put by Mr Licha. He contended that the Vexatious Proceedings Act does not apply to Mr Potier at all because his circumstances are governed by the Felons (Civil Proceedings) Act.

1. As was observed in respect of one of Mr Potier's own arguments in the Federal Court, the submission had the charm of ingenuity but must be rejected, in my view. The submission was based on the long-standing principle of the common law of England that a convicted felon could not institute proceedings in any court. In Dugan v Mirror Newspapers Ltd [1978] HCA 54; (1978) 142 CLR 58, the High Court held that that principle was part of the common law of New South Wales, at least in the case of felons convicted of capital offences (the position is less clear as to felons convicted of non-capital offences).

1. On the assumption that the incapacity extended to all convicted felons, Mr Licha submitted that the provisions concerning vexatious litigants in section 84 of the Supreme Court Act (which the Vexatious Proceedings Act replaced) could accordingly have no application to felons, since felons had no capacity to sue at the time those provisions came into force.

1. Subsequently, the Felons (Civil Proceedings) Act was introduced because the incapacity of felons to sue came to be perceived as an injustice, offending the rule of law and due process and internationally accepted standards of human rights (see generally the judgment of Murphy J in Dugan). Mr Licha submitted that the enactment of that Act did not have the result that section 84 of the Supreme Court Act "gained jurisdiction over felons".

1. It was submitted in turn that, since the Vexatious Proceedings Act came into force after the Felons (Civil Proceedings) Act but made no reference to it, it follows that the Vexatious Proceedings Act also does not apply to felons.

1. The submission confuses "jurisdiction" (or power) with the occasion for its exercise. The fact that felons could not institute proceedings meant that there was no occasion for a felon to be declared a vexatious litigant. That is not the same as there being no power under section 84 of the Supreme Court Act or the Vexatious Proceedings Act to make an order against a felon. The notion of "corruption of blood" explained in Dugan may be set aside in the task of construing the Vexatious Proceedings Act and the provisions it replaced. Nothing in either statute supports a construction that the provisions relating to vexatious litigants do not apply to felons.

1. Separately, Mr Licha relied upon the provisions of the Felons (Civil Proceedings) Act as a discretionary consideration militating against the making of a vexatious proceedings order. He noted the more onerous requirements for obtaining leave under the Vexatious Proceedings Act than under Felons (Civil Proceedings) Act.

1. In particular, s 14 of the Vexatious Proceedings Act requires an applicant for leave under that Act to file an affidavit listing all occasions on which he has applied for leave previously and all other proceedings he has instituted and disclosing all facts material to the application known to him. If the Court considers that the affidavit provided does not substantially comply with those requirements, the Court must dismiss the application.

1. Although there is no evidence on this issue before the Court, and noting that it is not appropriate for me to rely upon findings in other judgments dealing with the same point, it may be expected that it would be more difficult for a prisoner to comply with that requirement than for a person at liberty in the community. That is a factor militating to some degree against the making of a vexatious proceedings order. Conversely, it must be recalled that those requirements form part of the protection of the Act. Mr Licha submitted that the provisions of the Felons (Civil Proceedings) Act provide an adequate mechanism for the Court to manage Mr Potier's litigation. However, that would not be so if the court considering an application for leave under that Act were not aware of the full history of Mr Potier's litigation.

1. The Attorney General noted that there are significant differences between the two statutes. Perhaps the most significant consideration is their different objects. The Felons (Civil Proceedings) Act was directed to a particular mischief, being the unequal application of the civil law in the case of convicted felons. The requirement for leave under that Act is not an overly demanding one. The requirements for obtaining leave under the Vexatious Proceedings Act are undoubtedly more stringent, reflecting that statute's protective purpose.

1. The Attorney General further submitted that the Vexatious Proceedings Act is of broader application, since it applies to "public law remedies". I do not think that is correct. In one of the decisions above, Handley AJA gave consideration to a submission by Mr Potier that leave was not required to commence the proceedings in question. His Honour concluded that any proceeding which was not a criminal proceeding was a civil proceeding within the meaning of the Felons (Civil Proceedings) Act. I would respectfully agree. It follows that the application of the Vexatious Proceedings Act is not broader in that respect.

1. The Attorney General also noted that there is no appeal from a decision determining an application for leave under the Vexatious Proceedings Act whereas an appeal lies to the Court of Appeal (albeit only with leave) against a refusal of leave under the Felons (Civil Proceedings) Act. That is a further protective measure of the Vexatious Proceedings Act.

1. I consider that, so far as civil proceedings are concerned (by which I mean all kinds of proceedings apart from criminal proceedings), it is appropriate in all the circumstances to make a vexatious proceedings order.

1. The more difficult issue is the question of criminal proceedings. As already noted, the Attorney General does not seek an order staying Mr Potier's appeal against his conviction for the third charge of soliciting to murder. However, the Attorney General does seek an order prohibiting Mr Potier from instituting any interlocutory proceedings in connection with or incidental to that appeal.

1. It is not entirely clear to me what proceedings would fall within any such prohibition. It could arguably include an application for bail. As revealed by the foregoing discussion of the proceedings relied upon by the Attorney General as vexatious, it has been assumed in argument, and I have implicitly accepted, that an application for bail is "proceedings" within the meaning of the Vexatious Proceedings Act. If that is correct, the order sought by the Attorney General would have the effect of precluding Mr Potier from making an application for bail without first satisfying the requirements of s 14 of the Act and obtaining leave of the court. I do not think it would be appropriate to fetter Mr Potier's entitlement to apply for bail in that way. A person in custody should, in my view, have an unfettered right to apply for bail in accordance with the law. The importance of determining such applications expeditiously is reflected in s 22 of the Bail Act.

1. I do not know what other kind of interlocutory proceedings in connection with or incidental to his appeal against conviction might be pursued by Mr Potier. I am not persuaded that it is appropriate to prohibit the institution of any such proceedings by the mechanism of a vexatious proceedings order. Any interlocutory proceedings in connection with his appeal against conviction, which is currently pending in the Court of Criminal Appeal, should more properly be managed by that Court, rather than seeing the appeal process truncated and probably delayed by the interposition of a requirement to obtain leave under the Vexatious Proceedings Act from a judge of the Court sitting in this Division.

1. The Attorney General's application also seeks a stay of any proceedings instituted by Mr Potier before the date of the orders to be made today (with the exception of his appeal) against conviction currently pending in the Court of Criminal Appeal. There is a small number of such proceedings. It was acknowledged on behalf of Mr Potier at the hearing that he does not seek to pursue any of those claims.

1. To summarise my conclusions, I am satisfied that Mr Potier has frequently instituted or conducted vexatious proceedings in Australia. I am satisfied that it is appropriate to make a vexatious proceedings order under the Vexatious Proceedings Act prohibiting Mr Potier from instituting proceedings in New South Wales except any interlocutory proceedings (including bail proceedings) in his appeal against conviction currently pending in the Court of Criminal Appeal. I am further satisfied that it is appropriate to stay any existing proceedings with the exception of that appeal and any interlocutory proceedings in that appeal.

1. The orders are:

(1) That, pursuant to section 8(7)(b) of the Vexatious Proceedings Act, the defendant be prohibited from instituting proceedings in New South Wales except interlocutory proceedings in his appeal proceedings pending in the New South Wales Court of Criminal Appeal numbered 2005/14700 (including any bail application).

(2) That, pursuant to section 8(7)(a) of the Vexatious Proceedings Act, any proceedings already instituted by the defendant in New South Wales except his appeal proceedings pending in the New South Wales Court of Criminal Appeal numbered 2005/14700 and any interlocutory proceedings in that appeal be stayed.

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Decision last updated: 03 March 2014