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Potier v Arnott

Potier v Arnott

Case [2012] NSWCA 5 9 February 2012

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Court of Appeal

New South Wales

Case Title: Potier v Arnott & Ors

Medium Neutral Citation: [2012] NSWCA 5

Hearing Date(s): 31 October 2011

Decision Date: 09 February 2012

Jurisdiction:

Before:
Handley AJA

Decision:
(1) Time for filing the summons for leave to appeal is extended to 29 April 2010.
(2) Directions for referral for pro bono legal assistance refused.
(3) The Registrar is directed not to list the application for leave to appeal until at least five weeks after publication of these reasons to give Mr Potier an opportunity to file further submission in support of his leave application.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
PRACTICE & PROCEDURE - Felons Act 1981 - leave to commence proceedings - Summons for leave to appeal - pro bono legal assistance - application refused

Legislation Cited:
Correctional Centres Act 1952
Felons (Civil Proceedings) Act 1981
Legal Aid Commission Act 1979

Cases Cited:
Arthur J S Hall & Co v Simons [2002] 1 AC 615
Castrique v Behrens (1861) 3 E&E 709
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12, 223 CLR 1
Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335
Flynn v The Queen [1949] HCA 38, 78 CLR 1
Gilding v Eyre (1861) 10 CBNS 592
Hamzy v Commissioner of Corrective Services [2011] NSWSC 120
Potier v General Manager MRRC [2007] NSWSC 1031
Potier v General Manager MRRC [2008] NSWSC 153
Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 CA
Smith v Corrective Services Commission [1980] HCA 49, 147 CLR 134
Tectran Corporation Pty Ltd v Legal Aid Commission (1986) 7 NSWLR 340

Texts Cited:
Res Judicata (p 12)

Category: Principal judgment

Parties:
Malcolm Huntley Potier - Applicant
David Arnott SC - 1st Respondent
Director of Public Prosecutions NSW -2nd Respondent
Attorney-General of NSW - 3rd Respondent
McGowans Lawyers, T Healey SC - 4th Respondents
The NSW Department of Corrective Services - 5th Respondent
Legal Aid Commissioner of NSW - 6th Respondent

Representation

- Counsel:
Applicant in Person
N/A

- Solicitors:
Applicant in Person
Mr FF Salama - McGowan Lawyers, no appearance for other respondents

File number(s): 2008/288581

Decision Under Appeal

- Court / Tribunal:

- Before: R S Hulme J

- Date of Decision: 09 March 2010

- Citation: [2010] NSWSC 144

- Court File Number(s) SC 16303/2008; 16305/2008; 163007/2008; 16292/2008

Publication Restriction:

JUDGMENT

HANDLEY AJA : On 29 April 2010 Mr Potier applied by summons for leave to appeal out of time from the judgment of R S Hulme J of 9 March 2010: [2010] NSWSC 144. The Judge had refused leave under the Felons (Civil Proceedings)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Potier v Arnott

Details

AGLC: Potier v Arnott [2012] NSWCA 5
Case: [2012] NSWCA 5
Decision Date: 09 February 2012

CaseChat Overview and Summary

In *Potier v Arnott*, the applicant, Mr Potier, sought leave to appeal a decision of the court. The primary dispute concerned Mr Potier's request for the court to direct pro bono legal assistance for his application for leave to appeal. The matter came before Handley AJA in the Court of Appeal of New South Wales.

The central legal issue before the court was whether it had the power to direct pro bono legal assistance for an applicant seeking leave to appeal, and if so, whether such a direction should be made in the circumstances of this case. Mr Potier also sought an extension of time to file his summons for leave to appeal.

Handley AJA determined that the court did not have the power to compel legal practitioners to provide pro bono services. While acknowledging the importance of pro bono assistance, the court held that such assistance must be voluntary. The court did, however, grant an extension of time for Mr Potier to file his summons for leave to appeal, and directed that the application not be listed for at least five weeks to allow him to file further submissions. The court refused the specific direction for pro bono legal assistance.

Orders

Orders of the court

(1) Time for filing the summons for leave to appeal is extended to 29 April 2010.

(2) Directions for referral for pro bono legal assistance refused.

(3) The Registrar is directed not to list the application for leave to appeal until at least five weeks after publication of these reasons to give Mr Potier an opportunity to file further submission in support of his leave application.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Potier v Arnott [2012] NSWCA 5

Most Recent Citation

Attorney General in and for the State of New South Wales v Potier [2012] NSWSC 970

Cases citing this decision · 3 of 3 shown

Attorney General in and for the State of New South Wales v Potier
[2014] NSWSC 118

…3) 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…
Attorney General in and for the State of New South Wales v Potier
[2012] NSWSC 970 Para 1

…the Court's Pro Bono Panel (see Rule 7.36 of the Uniform Civil Procedure Rules 2005). Contrary to the views reached by Handley AJA in Potier v Arnott [2012] NSWCA 5 at [15], pro bono assistance would not in this case be a waste of the relevant barrister's time. To the contrary, it would be of real assistance to t…
Re Application of Malcolm Huntley Potier
[2012] NSWCA 222 Para 6

…. Those applications came before Handley AJA who granted the extension of time but refused a direction for pro bono legal assistance: Potier v Arnott [2012] NSWCA 5.…

View all 3 citing cases →

Cases cited in this decision · 13 of 13 shown

Potier v Legal Aid Commission of New South Wales
[2011] NSWSC 1066 Para 40

…ceedings. In any event Johnson J refused to grant leave under the 1981 Act for Mr Potier to bring judicial review proceedings against the Commission: [2011] NSWSC 1066.…
Hamzy v Commissioner of Corrective Services (NSW)
[2011] NSWSC 120 Para 30

…The cases Mr Potier cited for the last proposition, to which Hamzy v Commissioner of Corrective Services [2011] NSWSC 120 should be added, were for false imprisonment.…
Potier v Arnott
[2010] NSWSC 144 Para 1

…HANDLEY AJA : On 29 April 2010 Mr Potier applied by summons for leave to appeal out of time from the judgment of R S Hulme J of 9 March 2010: [2010] NSWSC 144. The Judge had refused leave under the Felons (Civil Proceedings) Act 1981 (the 1981 Act) for Mr Potier to bring actions for damages against Mr David Arnott…
Potier v Ruddock & MRRC
[2008] NSWSC 153 Para 25

…rt and in this Court. His applications for habeas corpus were refused: Potier v General Manager MRRC [2007] NSWSC 1031, Potier v General Manager MRRC [2008] NSWSC 153. I have been unable to trace any relevant decision of this Court.…
Potier v Ruddock & Anor; Potier v General Manager/Governor, M.R.R.C
[2007] NSWSC 1031 Para 25

…and he referred to proceedings in the Supreme Court and in this Court. His applications for habeas corpus were refused: Potier v General Manager MRRC [2007] NSWSC 1031, Potier v General Manager MRRC [2008] NSWSC 153. I have been unable to trace any relevant decision of this Court.…
Potier v R
[2006] NSWCCA 27 Para 20

…Mr Potier has an application for special leave pending from the decision of the Court of Criminal Appeal in his appeal against his first conviction: [2006] NSWCCA 27. Should the High Court allow that appeal it would seem that his second conviction must be set aside because the first conviction was in evidence befor…
D'Orta-Ekenaike v Victoria Legal Aid
[2005] HCA 12 Para 12

…g claims for damages against Mr Arnott SC, the Director of Public Prosecutions, and the Attorney-General because D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12, 223 CLR 1 established that an advocate owed no enforceable duty of care to his or her client in and in connection with the conduct of the client's c…
Smith v Corrective Services Commission (NSW)
[1980] HCA 49 Para 27

…that decision would be followed today in relation to proceedings for judicial review could be a real question: Smith v Corrective Services Commission [1980] HCA 49, 147 CLR 134, cf Flynn v The Queen [1949] HCA 38, 78 CLR 1, 8 per Dixon J.…
Flynn v The King
[1949] HCA 38 Para 27

…to proceedings for judicial review could be a real question: Smith v Corrective Services Commission [1980] HCA 49, 147 CLR 134, cf Flynn v The Queen [1949] HCA 38, 78 CLR 1, 8 per Dixon J.…
Goldsbrough Mort and Co Ltd v Hall
[1949] HCA 2 Para 27

…for judicial review could be a real question: Smith v Corrective Services Commission [1980] HCA 49, 147 CLR 134, cf Flynn v The Queen [1949] HCA 38, 78 CLR 1, 8 per Dixon J.…
[2002] 1 AC 615
[2002] 1 AC 615 Para 13

…The High Court refused to follow Arthur J S Hall & Co v Simons [2002] 1 AC 615 ( Hall ) where the House of Lords held, by majority, that an advocate may be liable to his or her own client for negligence in the conduct of criminal proceedings. Earlier the Court of Appeal held that advocates and solicitors ordinaril…
Gilding v Eyre
(1861) 10 CB (NS) 592

…a Legal Aid [2005] HCA 12, 223 CLR 1 Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 Flynn v The Queen [1949] HCA 38, 78 CLR 1 Gilding v Eyre (1861) 10 CBNS 592 Hamzy v Commissioner of Corrective Services [2011] NSWSC 120 Potier v General Manager MRRC [2007] NSWSC 1031 Potier v General Manager MRR…
[1995] QB 335
[1995] QB 335 Para 13

…hat advocates and solicitors ordinarily owe no duty of care to a litigant on the other side: Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335. In Hall (above) at pp 679, 724, and 747 three of the Law Lords referred to Elguzouli-Daf with evident approval.…

Legislation cited in this decision · 3

Correctional Centres Act 1952 (NSW)
1 mention (from Para 27)
Felons (Civil Proceedings) Act 1981 (NSW)
1 mention (from Para 1)
Legal Aid Commission Act 1979 (NSW)
1 mention (from Para 39)

Case Title:	Potier v Arnott & Ors
Medium Neutral Citation:	[2012] NSWCA 5
Hearing Date(s):	31 October 2011
Decision Date:	09 February 2012
Jurisdiction:
Before:	Handley AJA
Decision:	(1) Time for filing the summons for leave to appeal is extended to 29 April 2010. (2) Directions for referral for pro bono legal assistance refused. (3) The Registrar is directed not to list the application for leave to appeal until at least five weeks after publication of these reasons to give Mr Potier an opportunity to file further submission in support of his leave application. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PRACTICE & PROCEDURE - Felons Act 1981 - leave to commence proceedings - Summons for leave to appeal - pro bono legal assistance - application refused
Legislation Cited:	Correctional Centres Act 1952 Felons (Civil Proceedings) Act 1981 Legal Aid Commission Act 1979
Cases Cited:	Arthur J S Hall & Co v Simons [2002] 1 AC 615 Castrique v Behrens (1861) 3 E&E 709 D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12, 223 CLR 1 Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 Flynn v The Queen [1949] HCA 38, 78 CLR 1 Gilding v Eyre (1861) 10 CBNS 592 Hamzy v Commissioner of Corrective Services [2011] NSWSC 120 Potier v General Manager MRRC [2007] NSWSC 1031 Potier v General Manager MRRC [2008] NSWSC 153 Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 CA Smith v Corrective Services Commission [1980] HCA 49, 147 CLR 134 Tectran Corporation Pty Ltd v Legal Aid Commission (1986) 7 NSWLR 340
Texts Cited:	Res Judicata (p 12)
Category:	Principal judgment
Parties:	Malcolm Huntley Potier - Applicant David Arnott SC - 1st Respondent Director of Public Prosecutions NSW -2nd Respondent Attorney-General of NSW - 3rd Respondent McGowans Lawyers, T Healey SC - 4th Respondents The NSW Department of Corrective Services - 5th Respondent Legal Aid Commissioner of NSW - 6th Respondent
Representation
- Counsel:	Applicant in Person N/A
- Solicitors:	Applicant in Person Mr FF Salama - McGowan Lawyers, no appearance for other respondents
File number(s):	2008/288581
Decision Under Appeal
- Court / Tribunal:
- Before:	R S Hulme J
- Date of Decision:	09 March 2010
- Citation:	[2010] NSWSC 144
- Court File Number(s)	SC 16303/2008; 16305/2008; 163007/2008; 16292/2008
Publication Restriction: