Potier v Attorney General in and for the State of New South Wales [2015] NSWCA 129
Hearing dates:
25 March 2015
Decision date:
13 May 2015
Before:
Basten JA at [1]; Meagher JA at [31]; Leeming JA at [35]
Decision:
(1) Grant leave to rely on the Further Amended Summons dated 2 April 2015.
(2) Grant leave to appeal and, to the extent necessary, leave to proceed under the Felons Act.
(3) Dispense with the requirements of filing and service of the notice of appeal.
(4) Appeal allowed in part.
(5) Set aside order 1 made on 25 February 2014.
(6) Vary order 2 made on 25 February 2014 by adding the words “and any application under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW)” so that it reads:
“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 and any application under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) be stayed.”
Catchwords:
PRACTICE AND PROCEDURE – vexatious proceedings orders – whether available with respect to a person subject to the Felons (Civil Proceedings) Act 1981 (NSW) – whether application for leave under Felons Act could require leave under Vexatious Proceedings Act 2008 (NSW)
PRACTICE AND PROCEDURE – person in custody in relation to a serious indictable offence – application of requirement for leave with respect to all such persons – operation of Felons (Civil Proceedings) Act 1981 (NSW), s 4
PRACTICE AND PROCEDURE – vexatious proceedings orders – formulation of orders – need to consider temporal limit – need to consider proper scope – need to consider effect on defence of criminal proceedings – whether “blanket” orders desirable
STATUTORY INTERPRETATION – overlapping statutes of same polity – reconciliation of potential conflict – avoiding circularity
[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.
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AGLC
Potier v Attorney General (NSW) [2015] NSWCA 129
Case
[2015] NSWCA 129
Decision Date
CaseChat Overview and Summary
In *Potier v Attorney General (NSW)*, the New South Wales Court of Appeal considered an appeal concerning vexatious proceedings orders made against the appellant, who was also subject to the *Felons (Civil Proceedings) Act 1981* (NSW). The Attorney General sought to have the appellant declared a vexatious litigant.
The primary legal issues before the Court of Appeal were whether a person subject to the *Felons (Civil Proceedings) Act* could be subject to vexatious proceedings orders, and whether an application for leave under the *Felons Act* could itself require leave under the *Vexatious Proceedings Act 2008* (NSW). The Court also considered the appropriate formulation of vexatious proceedings orders, including the need for temporal limits, proper scope, and the effect on the defence of criminal proceedings, particularly in light of the appellant being in custody for a serious indictable offence.
The Court engaged in statutory interpretation to reconcile the operation of the *Vexatious Proceedings Act* and the *Felons (Civil Proceedings) Act*, aiming to avoid circularity and give effect to both legislative regimes. The Court held that the *Vexatious Proceedings Act* applied to persons in custody for serious indictable offences, and that the requirement for leave under that Act was not circumvented by the *Felons Act*. The Court also determined that "blanket" vexatious proceedings orders were not desirable, and that such orders should be carefully formulated to consider their temporal scope and impact on ongoing criminal proceedings.
The Court of Appeal allowed the appeal in part, setting aside one of the original orders and varying another to clarify that it included applications under Part 7 of the *Crimes (Appeal and Review) Act 2001* (NSW). The Court granted leave to appeal and, to the extent necessary, leave to proceed under the *Felons Act*.
Orders
Orders of the court
(1) Grant leave to rely on the Further Amended Summons dated 2 April 2015.
(2) Grant leave to appeal and, to the extent necessary, leave to proceed under the Felons Act.
(3) Dispense with the requirements of filing and service of the notice of appeal.
(4) Appeal allowed in part.
(5) Set aside order 1 made on 25 February 2014.
(6) Vary order 2 made on 25 February 2014 by adding the words “and any application under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW)” so that it reads:
“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 and any application under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) be stayed.”