Potier v Attorney General (NSW)

[2015] NSWCA 129

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

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

WORDS AND PHRASES – “frequently” – Vexatious Proceedings Act 2008 (NSW) – “civil proceedings” – “person who is in custody as a result of … a serious indictable offence” – Felons (Civil Proceedings) Act 1981 (NSW)

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Colonial Laws Validity Act 1865 (Imp)
Crimes Act 1900 (NSW), ss 474D, 580E
Crimes (Appeal and Review) Act 2001 (NSW), s 79; Pt 7
Crimes Legislation Amendment (Sentencing) Act 1999 (NSW)
Evidence Act 1995 (NSW), s 91
Felons (Civil Proceedings) Act 1981 (NSW), ss 3, 4, 5, 6, 7, 9
Freedom of Information Act 1989 (NSW)
Fugitive Offenders Act 1881 (Imp)
Interpretation Act 1987 (NSW), s 35
Judiciary Act 1903 (Cth), s 78
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 7
Migration Act 1958 (Cth), s 14
Service and Execution of Process Act 1901 (Cth)
Supreme Court Act 1970 (NSW), ss 71, 84, 101
Trade Marks Act 1994 (UK)
Vexatious Proceedings Act 2008 (NSW), ss 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16; Pts 2, 3
Vexatious Proceedings Act 2014 (Vic), ss 7, 8

Cases Cited:

2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No 73943 [2014] NSWCA 409
Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538
Attorney General in and for the State of New South Wales v Potier [2014] NSWSC 118
Attorney General in and for the State of New South Wales v Potier (No 2) [2015] NSWSC 238
Attorney-General for the State of Victoria v Knight [2004] VSC 407
Australian Securities Commission v Malborough Gold Mines Ltd (1993) 177 CLR 485
Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364
Bruton Holdings Pty Ltd (in liq) v Commissioner of Taxation of the Commonwealth of Australia [2009] HCA 32; 239 CLR 346
Butler v Attorney-General for the State of Victoria (1961) 106 CLR 268
Cobiac v Liddy (1969) 119 CLR 257
Collins v The Queen (1975) 133 CLR 120
Commissioner of Police for New South Wales v Eaton [2013] HCA 2; 252 CLR 1
Conde v Gilfoyle [2010] QCA 109
CTM v The Queen [2008] HCA 25; 236 CLR 440
DPP v Leys & Leys [2012] VSCA 304; 296 ALR 96
Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583
Eberstaller v Poulos [2014] NSWCA 211; 313 ALR 165
Ferdinands v Commissioner for Public Employment [2006] HCA 5; 225 CLR 130
Ffrost v Stevenson (1937) 58 CLR 528
Haddara v The Queen [2014] VSCA 100
House v The King (1936) 55 CLR 499
Independent Commission Against Corruption v Cunneen [2015] HCA 14
Inter Lotto (UK) Ltd v Camelot Group plc [2003] EWCA Civ 1132; [2003] 4 All ER 575
Jol v State of New South Wales (1998) 45 NSWLR 283
Kay v Attorney-General [2000] VSCA 176; 2 VR 436
Klewer v Attorney General in and for the State of New South Wales [2010] NSWCA 219
Lacey v Attorney-General for the State of Queensland [2011] HCA 10; 242 CLR 573
Macari v Mirror Newspapers Ltd (Supreme Court (NSW), Cantor J, 4 March 1980, unrep)
Mok v Director of Public Prosecutions (NSW) [2015] NSWCA 98
Patsalis v State of New South Wales [2012] NSWCA 307; 81 NSWLR 742
Pedler v Hunters Hill Municipal Council [1976] 2 NSWLR 411
Piper v Corrective Services Commission of NSW (1986) 6 NSWLR 352
Potier v Attorney General in and for the State of New South Wales [2014] NSWCA 256
Potier v General Manager, Dawn de Loas Correctional Centre (No 2) [2012] NSWCA 353
Potier v General Manager, Dawn De Loas Correctional Centre [2012] NSWCA 352
Potier v Magistrate Moore [2004] NSWSC 1131
Potier v North Queensland Regional Council [2013] QSC 344
Potier v R [2006] NSWCCA 27
Potier v R [2014] NSWCCA 157
Potier v R [2014] NSWCCA 177
Potier v State of New South Wales [2014] NSWCA 359
Potier v The General Manager, MSPC Area 2 Long Bay Correctional Centre [2012] NSWSC 233
Potier v The Queen [2013] HCA Trans 207
Potier v The State of New South Wales [2014] NSWSC 1271
R v Pora [2000] NZCA 403; [2001] 2 NZLR 37
R v Potier [2005] NSWCCA 256
R v Potier [2014] NSWSC 131
Re Bland Bros and the Council of the Borough of Inglewood (No 2) [1920] VLR 522
Re Maritime Union of Australia; ex parte CSL Pacific Shipping Inc [2003] HCA 43; 214 CLR 397
Shaw v McGinty (Attorney-General) [2006] WASCA 231
Sinkovich v Attorney General of New South Wales [2013] NSWCA 383; 85 NSWLR 783
Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324; 81 NSWLR 771
Viavattene v Attorney General (NSW) [2015] NSWCA 44
Victorian WorkCover Authority v Esso Australia Ltd [2001] HCA 53; 207 CLR 520
Vorhauer v NSW Minister for Health [2005] NSWSC 797

Texts Cited:

Felons (Civil Proceedings) Bill 1981 (NSW)
New South Wales Legislative Council, Parliamentary Debates (Hansard), 14 April 1981 at 5800-5801
J Donnelly, “Judicial Review for the Convicted Felon in Australia – a Consideration of Statutory Context and the Doctrine of Attainder” (2012) 16(1) UWSLR 137, 146-154

Category:

Principal judgment

Parties:

Malcolm Huntley Potier (Appellant)
Attorney General in and for the State of New South Wales (Respondent)

Representation:

Counsel:
C Ireland (Appellant)
J Emmett (Respondent)

Solicitors:
Crown Solicitor’s Office (Respondent)

File Number(s):

2014/176546

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2014] NSWSC 118 and [2015] NSWSC 238

Date of Decision:

25 February 2014

Before:

McCallum J

File Number(s):

2011/344959

Judgment

INDEX
BASTEN JA:	[1]
Approach to formulating orders	[17]
A reformulated order	[24]
Operation of Felons Act	[28]
Conclusion	[30]
MEAGHER JA:	[31]
LEEMING JA:	[35]
Facts	[39]
Leave to the extent necessary should be granted	[47]
The relationship between the Felons Act and the Vexatious Proceedings Act	[50]
The Felons Act	[55]
The Vexatious Proceedings Act	[64]
Comparison between Felons Act and Vexatious Proceedings Act	[75]
Section 7 of the Vexatious Proceedings Act	[78]
Does the Felons Act confer a power to restrict vexatious proceedings?	[86]
Does the Vexatious Proceedings Act “limit or otherwise affect” the jurisdiction or powers a court would otherwise have to restrict vexatious proceedings?	[88]
Specific provisions not overridden by general provision?	[99]
The Vexatious Proceedings Act does not apply until leave has been obtained under the Felons Act	[104]
Was there appellable error in the conclusion that Mr Potier had frequently instituted or conducted vexatious proceedings?	[114]
The meaning of “frequently”	[114]
The 22 proceedings regarded by the primary judge as vexatious	[121]
Was appellable error shown in the order made by the primary judge?	[127]
Re-exercising the power under s 8 of the Vexatious Proceedings Act	[130]
Conclusion and orders	[139]

1. BASTEN JA: The practical effect of the Felons (Civil Proceedings) Act 1981 (NSW) (“the Felons Act”) is to restrict the capacity of a specified class of persons in custody to commence civil proceedings in a court. By contrast, the Vexatious Proceedings Act 2008 (NSW) operates in two stages. First, it allows a court to create such a class by identifying persons whose capacity to commence or maintain any proceedings will be restricted. Their capacity to commence proceedings is then restricted by the terms of the court’s order.

2. The restriction under each Act is in the form of a prohibition which may be lifted by permission from a court to bring particular proceedings.

3. The prohibition under the Felons Act is automatic and unreviewable when the condition (being in custody for a serious indictable offence) is engaged: it continues for so long as the condition subsists. The application of the prohibition under the Vexatious Proceedings Act depends entirely upon the existence and scope of the court’s order, which will be based on past vexatious conduct as a litigant. An order may extend to conduct not within the scope of the Felons Act prohibition, even where the Felons Act is otherwise engaged.

4. The first question raised on this appeal is whether the Vexatious Proceedings Act permits a court to impose an additional level of control on a person subject to the Felons Act. The requirements of the Vexatious Proceedings Act in respect of persons subject to its provisions are quite demanding and not readily complied with by persons in custody. The possibility that a person could obtain leave under the Felons Act regime, but be unable to obtain leave under the Vexatious Proceedings Act is troubling. This is not a circumstance where the levels of regulation serve different purposes, but rather where both serve the same purpose. It may seem surprising that the government would seek to impose dual constraints in pursuit of a single purpose, unless one had been shown to be manifestly inadequate or ineffective.

5. Whether dual levels of regulation arise is a question of statutory interpretation. There is nothing in either Act which provides a clear basis for limiting the operation of either Act. Nevertheless, there are considerations which support a conclusion that both are not intended to operate simultaneously.

6. First, unless the two levels of regulation can be harmonised, their prohibitions will be absolute rather than conditional. That is because an application to a court for leave to commence proceedings under the Felons Act will fall within the scope of a vexatious proceedings order (unless expressly excluded) and cannot therefore be made without leave under the Vexatious Proceedings Act.

7. Whether the same can be said with respect to the Felons Act is less clear: that is, s 4, prohibiting a person in custody from instituting civil proceedings in any court may not extend to the case of the person applying to a court for leave to institute proceedings, where that is required. It will be necessary to return to that possibility shortly: first, an alternative means of reconciliation may be considered.

8. Although argument focused on s 7 of the Vexatious Proceedings Act, it does not appear to provide any assistance in resolving the inter-relationship of these two Acts. It states a conclusion, namely that the Vexatious Proceedings Act “does not limit or otherwise affect” the inherent jurisdiction or powers of a court or tribunal, apart from the Vexatious Proceedings Act, to restrict vexatious proceedings. Such a provision may appropriately be read as requiring that the Vexatious Proceedings Act not be construed so as to have any such effect. However, it is doubtful that the savings effect of s 7 operates with respect to the Felons Act because it is the Felons Act itself which restricts what might be vexatious proceedings. It imposes a prohibition subject to the power of a court to lift the prohibition. That is not to confer on the court a power to restrict vexatious proceedings, but rather to confer a power to remove a restriction imposed by statutory mandate. Read according to its ordinary meaning, s 7 of the Vexatious Proceedings Act does not refer to the restriction imposed by the Felons Act. Thus, once a person seeking to commence civil proceedings requires leave under both Acts, it appears that no application for leave may be made under either, because it will be prohibited by the other.

9. Because the applications may be required to be made to different courts, this dilemma cannot always be resolved by requiring contemporaneous applications for leave under both. Even if (in some cases) practical arrangements might be made to avoid this result, a requirement for dual applications, tested according to the same criteria of abuse of process and reasonable grounds, could nevertheless give rise to inconsistent outcomes.

10. Given the additional requirements of the Vexatious Proceedings Act, it would be much easier for a person with a legitimate claim to pursue proceedings with leave under the Felons Act. The inflexible and demanding requirements of the Vexatious Proceedings Act with respect to such applications, as explained by Leeming JA, would often have the practical effect of rendering that Act the dominant partner. Thus, an order of a court granting leave under the Felons Act might be set at nought by a refusal, possibly for technical non-compliance with the requirements of the Vexatious Proceedings Act. Because in some cases applications may need to be made to different courts, the problem of inconsistency is real and not susceptible to any universal ‘practical’ solution.

11. There is the further disconformity with respect to appeal rights against a refusal of leave, appeals being permitted under the Felons Act, but not under the Vexatious Proceedings Act.

12. These factors militate in favour of a reading which prevents the two Acts operating with respect to the same individual at a particular time.

13. There are countervailing considerations. First, any construction which rolls back the operation of one Act once the other is engaged faces temporal difficulties. In the present case, the Attorney sought an order under the Vexatious Proceedings Act at a time when Mr Potier was already subject to the constraints imposed by the Felons Act. However, that might not always be the case; for example, where an order was made first under the Vexatious Proceedings Act and the person subject to the orders was subsequently taken into custody for a serious indictable offence. There is no means, in that circumstance, for reading the Felons Act as inapplicable; nor is it possible to construe the Vexatious Proceedings Act, pursuant to which an order has already been made, in such a way as to diminish the effect of the vexatious proceedings order, although it could possibly be varied pursuant to s 9.

14. Having regard to these contending considerations, it is difficult to articulate a principle of statutory construction which would avoid dual regulation under the two Acts. Accordingly, the better view is that, so far as possible, dual regulation, with the potential for inconsistent outcomes, should be avoided by a court crafting a vexatious proceedings order in a manner which achieves that which may properly be required of such an order, with care not to overreach. These considerations are of general application.

15. One matter of inconsistency can be avoided. The circularity of each Act prohibiting an application for leave under the other may be resolved by reading the Felons Act as not extending to an application under the Vexatious Proceedings Act. (However, circularity may also be avoided by formulating any order under the latter Act as not applying to proceedings requiring leave, nor to appeals from a refusal of leave which do not otherwise require leave, under the Felons Act.)

16. That construction is readily available on the different language of each Act. The restriction in the Felons Act is against instituting any civil proceedings in any court: Felons Act, s 4. Consistently with the approach adopted by the High Court in relation to special leave applications, “until the grant of leave or special leave, there are no proceedings inter partes before the Court.”: Collins v The Queen (1975) 133 CLR 120 at 122 (Barwick CJ, Stephen, Mason and Jacobs JJ). Thus an applicant for leave is not a “party” for the purposes of s 78 of the Judiciary Act 1903 (Cth) permitting a party to appear personally. Consistently with that reasoning, an application for leave to commence proceedings does not constitute the institution of civil proceedings under the Felons Act. By contrast, the expansive definition of “institute”, in relation to proceedings, in the Vexatious Proceedings Act, would appear to encompass an application for leave under the Felons Act: Vexatious Proceedings Act, s 5(1)(a).

Approach to formulating orders

17. In formulating orders under the Vexatious Proceedings Act, the court should recognise the important principle of open access to justice and should limit such access by an individual to no greater extent than is proportionate to the needs of the particular case. For a person who has no criminal record, it may be both unnecessary and offensive to limit the operation of such an order to circumstances where, if engaged at some time in the future, the Felons Act would not operate. Unforeseen events may need to be addressed by a variation of an order, permissible under the Vexatious Proceedings Act, as a change in circumstances arises.

18. Further, it would usually be appropriate to limit such an order temporally. In some cases vexatious litigation has arisen from an identifiable cause, which is likely to have a limited lifespan. Unlike criminal proceedings, the imposition of constraints under the Vexatious Proceedings Act can always be extended if, towards the end of a given period, such a need is established. An example of an order sought by the Victorian Attorney General, limited to a period of 10 years, may be seen in Attorney-General for the State of Victoria v Knight [2004] VSC 407 at [1].

19. There are other limitations which may properly be imposed. One issue arises from the consequences of an order in blanket form, prohibiting a person from instituting proceedings, pursuant to s 8(7)(b). The definitions of “institute” and “proceedings” give such an order a wide operation. It will extend, as is commonly intended, to the commencement of criminal proceedings by the person concerned. That may often be appropriate: what will usually be inappropriate is the preclusion of steps taken by the person subject to the order within proceedings instituted by the Director of Public Prosecutions or by a police officer, for an indictable or a summary offence. The width of the prohibition is demonstrated by the inclusion, within the definition of “proceedings”, of interlocutory proceedings “taken in connection with or incidental to proceedings pending before a court or tribunal” and proceedings “calling into question a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way”: Vexatious Proceedings Act, s 4(b) and (c). An order under s 8(7)(b) prohibiting a person from instituting proceedings in New South Wales will thus cover any bail application made by a person who has been arrested and any appeal from a conviction. No one can tell when the person before the court may be arrested on suspicion of an offence yet to be committed (or even an offence which has not been committed, or not by that person). A blanket order which impedes steps taken in defence of criminal proceedings, placing the person under the heavy constraints imposed by a requirement for leave, should never be made, or at least only in extraordinary circumstances which are not readily envisaged. Yet the order made in the present case (and, one might suspect, most other vexatious proceedings orders) extended to such circumstances.

17. Secondly, whether such an order extends to prohibiting a person seeking a writ of habeas corpus has not been determined. However, until it is (or until legislative amendment removes the concern) it is again almost inconceivable that a vexatious proceedings order should be in terms which may impose constraints on a form of relief which has often been considered a cornerstone of the relationship between the individual and the State, protective of the liberty of the former against the latter. In circumstances in which the Attorney does not expressly seek such relief, the order should be expressed not to extend so far.

18. The present applicant is in custody following conviction for a serious indictable offence. It may be that he will be removed from the country when eligible for release from his sentence, because of his immigration status. It seems commonplace (and understandable) that when applications are made under the Vexatious Proceedings Act parties (and the court) tend to focus on the immediate circumstances of the defendant. However, that is to risk imposing on the defendant orders in a form far broader than might be warranted and with effects which were neither intended nor foreseen.

19. A third issue which should be noted arises from an application to vary the orders to exclude an apparently extant application under Pt 7 of the Crimes (Appeal and Review) Act2001 (NSW) (“Appeal and Review Act”) with respect to convictions where the applicant had exhausted his rights of appeal. McCallum J rejected the application: Attorney General (New South Wales) v Potier (No 2) [2015] NSWSC 238. She held that a variation was necessary because the proposed Part 7 inquiry was a “matter” within the meaning of that term in s 4(a), as it invoked “a statutory power of the Supreme Court which falls to be determined by the Court”, referring to s 79(1) of the Appeal and Review Act: at [44]-[45].

20. Section 4(a) refers to “any cause, matter … within the jurisdiction of any court”. On one view, the reference to “jurisdiction” refers to the powers of the court in exercising, or at least incidental to the exercise of, judicial power. The nature of the right conferred under Pt 7, and the characterisation of the consideration of such an application by a judge of the court, was considered in Sinkovich v Attorney General of New South Wales [2013] NSWCA 383; 85 NSWLR 783. The Court held that consideration of an application for an inquiry did not constitute an exercise of judicial power: at [12] and see s 79(4). It is not necessary to consider whether such an application might fall within some other aspect of the definition, such as s 4(c). Again, however, in circumstances where the Felons Act was not engaged, and as McCallum J recognized at [60], it might be doubted whether a vexatious proceedings order should extend to such applications.

A reformulated order

24. Orders under the Vexatious Proceedings Act may, as the primary judge recognised, be made -

1. staying all or part of any proceedings in New South Wales already instituted (but not determined), pursuant to s 8(7)(a), and

2. prohibiting the person from instituting proceedings in New South Wales, pursuant to s 8(7)(b).

25. It may be assumed for present purposes (the contrary not being proposed) that such orders relate to proceedings in all New South Wales courts or tribunals, that being the apparent scope of s 4, but not federal courts.

26. As noted by Leeming JA, the order staying extant proceedings, save for the pending appeal against conviction, was not said to be erroneous in its terms, on the assumption that the power existed. However, the exception should extend to cover any calling into question of a conviction in a State court. It is unclear (the point not having been fully argued) whether an application under Pt 7 of the Appeal and Review Act would fall within the scope of s 4(c). The safer course is to exclude it. In the absence of any order with respect to future proceedings, it is not necessary to consider whether further exception should be made with respect to proceedings by way of judicial review, applications for habeas corpus and other proceedings following the laying of criminal charges. Generally, such matters would require careful consideration.

27. Absent any such order, it is also unnecessary to consider whether a temporal limit should be imposed. In principle, consideration should generally be given to that possibility. In the present case, Mr Potier’s current sentence will expire in a little over three years’ time, so that his continued immigration status in this country may well be a naturally limiting factor with respect to the operation of any orders made.

Operation of Felons Act

28. This case raises squarely (for the first time) the question as to the scope of the constraint imposed by the Felons Act. As originally enacted, the Felons Act had two purposes. The first (dealt with in s 3, since repealed) was to abolish the disability under the general law of a felon with respect to instituting and maintaining civil proceedings in a court. The second purpose was to impose a leave requirement (s 4). The question was whether the latter purpose was restricted to the scope of the first.

29. The scope of the general law disability was uncertain. In Patsalis v State of New South Wales [2012] NSWCA 307; 81 NSWLR 742 at [41] I noted the arguments in favour of a restrictive understanding of the disability and hence the scope of s 3; again adopting a restrained approach, s 4 could be seen to require leave in those situations where the abolished general disability had operated. I did not reach a final conclusion (see [42]); other members of the Court expressly reserved their positions with respect to that issue: see Allsop P at [7], Sackville AJA at [113]. The issue has now been fully addressed by Leeming JA and I agree with his conclusion that s 4 should not be read down in the manner proposed. The broader scope, giving the language of s 4 its ordinary meaning, is the preferable reading of the statute.

Conclusion

30. Subject to these reasons, I agree with Leeming JA. Orders should be made as proposed by Leeming JA.

31. MEAGHER JA: I agree with the orders proposed by Leeming JA. I do so for the reasons given by his Honour and add two short observations. I have adopted the abbreviations used by Basten JA and Leeming JA.

32. Each observation relates to the conclusion that s 7 of the Vexatious Proceedings Act applies to exclude from proceedings the institution of which might be the subject of a prohibition order under s 8 of that Act, an application or appeal under ss 5 and 6 of the Felons Act.

33. First, the effect of s 4 of the Felons Act is to prohibit, subject to a grant of leave, the institution of any civil proceeding by the person in custody to which it applies. Section 5 permits a grant of leave only where the court is satisfied of two matters. The absence of satisfaction as to either of those matters would be sufficient to make the proceeding a “vexatious” one within s 6 of the Vexatious Proceedings Act. Thus s 5 of the Felons Act enables the court, by the requirement for leave, to limit the proceedings to which the prohibition applies to those which answer that description. That power is, in the language of s 7 of the Vexatious Proceedings Act, a power “to restrict vexatious proceedings”.

34. Secondly, the Vexatious Proceedings Act confers powers on the courts and tribunals in which proceedings are instituted in contravention of s 13(1), as well as upon the Supreme Court and other “authorised” courts. Section 7 is directed to preserving any inherent jurisdiction and powers that any such court or tribunal “has apart from this Act”. In its application it assumes the conferral of those powers in accordance with the Act except where to do so would limit or otherwise affect any such separate inherent jurisdiction or power.

35. LEEMING JA: Mr Malcolm Huntley Potier seeks leave to appeal from orders made by the primary judge under s 8 of the Vexatious Proceedings Act 2008 (NSW): Attorney General in and for the State of New South Wales v Potier [2014] NSWSC 118 at [223]. The orders did not extend to a pending appeal against conviction, which has been heard but has not been determined. The orders stayed all other proceedings instituted by him, and prevented the commencement of any further proceedings by him save for interlocutory applications relating to the unstayed appeal.

36. Mr Potier was represented on appeal by Mr Clifford Ireland, following his acceptance of a referral for pro bono assistance: Potier v Attorney General in and for the State of New South Wales [2014] NSWCA 256. His principal submission was that the Vexatious Proceedings Act did not apply to Mr Potier, who was already subject to the regime in the Felons (Civil Proceedings) Act 1981 (NSW) (Felons Act). Mr James Emmett appeared for the Attorney in this Court, although not at first instance. His principal submission was that both the Vexatious Proceedings Act and the Felons Act applied, cumulatively, with the requirements imposed by the Vexatious Proceedings Act being determined first.

37. The issues in this appeal are far from straightforward, but I have been considerably assisted by both parties’ submissions, which were of a high calibre. For the reasons which follow, I have concluded that the Felons Act and the Vexatious Proceedings Act both apply to Mr Potier, but in a way which differs from the approach taken by both parties. Even so, I have concluded that no error has been shown in the primary judge’s finding that the power to make orders under the Vexatious Proceedings Act was available. However, Mr Potier has established grounds to set aside the first order made, in respect of the institution of proceedings in the future, and, partly out of an abundance of caution, a variation to the second order is warranted. Accordingly, there should be a grant of leave, the appeal allowed in part, order 1 set aside, and order 2 varied.

38. This Court should, if it can, re-exercise the discretion to make orders under the Vexatious Proceedings Act. In determining the form of any orders, especially important are the facts that (a) the overwhelming majority of proceedings commenced by Mr Potier subsequent to the decision of the primary judge being reserved (eight out of nine) were not regarded by the Attorney as vexatious, and (b) contrary to the Attorney’s submissions, it is not established that the ninth is vexatious within the meaning of the Vexatious Proceedings Act. Once it is borne in mind that (a) Mr Potier remains subject to the Felons Act and (b) any order under the Vexatious Proceedings Act would place a heavy burden on a man whose last nine applications have not been shown to be vexatious, it may readily be seen that the appropriate exercise of discretion is that no order be made under the Vexatious Proceedings Act in respect of the institution of proceedings in the future.

Facts

39. Mr Potier is a citizen of the United Kingdom. He arrived in Australia on a travel class visa using a false passport in December 1999. The events leading to Mr Potier’s visa being cancelled and his being taken into immigration detention are set out in the primary judge’s reasons at [5]-[7] in the principal judgment, and are not presently relevant. The Court was told when the appeal was heard that Mr Potier has been an “unlawful non-citizen”, as defined in s 14 of the Migration Act 1958 (Cth), since the cancellation of his visa.

40. While Mr Potier was in immigration detention in early 2000, he was said to have revealed to an acquaintance a plan to kill his child’s mother and the mother’s new partner. This led to Mr Potier being charged in May 2000 with two counts of soliciting to murder. Mr Potier was convicted of both offences in October 2001. Mr Potier appealed both convictions, without success: [2006] NSWCCA 27. Before being sentenced, he was charged with a third count of soliciting to murder (again relating to his child’s mother). In April 2002, Mr Potier was sentenced to two fully concurrent terms of imprisonment of six years and eight months, with a non-parole period of five years, for the first two offences of soliciting to murder. Those sentences expired on 7 January 2007.

41. In October 2006, Mr Potier was convicted of the third count of soliciting to murder, and on 13 November 2006 he was sentenced to 12 years imprisonment with a non-parole period of 7 years, commencing on 7 August 2006. Mr Potier appealed this conviction. The Court of Criminal Appeal’s judgment was reserved as at the date of this judgment.

42. Mr Potier is presently in custody, serving his sentence for the third count of soliciting to murder. The non-parole period for this sentence expired on 7 August 2013, but parole has not to date been granted. The term of Mr Potier’s sentence will expire on 7 August 2018. He may well be held in immigration detention if, on completing his custodial sentence, he is liable to deportation.

43. Mr Potier made a series of applications which led to the Attorney commencing proceedings seeking orders under the Vexatious Proceedings Act. The Attorney’s application was heard over two days before the primary judge, with Mr Potier being represented by counsel appearing pro bono. The Attorney relied on over 30 proceedings commenced by Mr Potier over the previous 12 years. The first seven of those proceedings were challenges under the Migration Act 1958 (Cth) heard and determined by the Federal Court of Australia between 2000 and 2004. The balance were connected with the criminal proceedings against him or involved his appeals, and all save one were heard and determined by the Supreme Court, the Court of Appeal or the Court of Criminal Appeal (the exception was an appeal from the refusal of applications connected with an application under the (now repealed) Freedom of Information Act 1989 (NSW) determined by the (former) Administrative Decisions Tribunal).

44. It is not necessary for present purposes to describe all of the various proceedings. They are summarised in [39]-[202] of the reasons of the primary judge. Her Honour considered that 22 of those proceedings (three in the Federal Court, 18 in the Supreme Court and that in the Administrative Decisions Tribunal) were “vexatious proceedings” within the meaning of the Vexatious Proceedings Act. Her Honour was satisfied that Mr Potier had frequently instituted or conducted vexatious proceedings, so as to enliven the power under s 8 of the Vexatious ProceedingsAct (see at [203]) and then exercised the discretion conferred by that section to make the orders challenged in this appeal (see at [204]-[222]).

45. More recently, Mr Potier applied to the primary judge under s 9 of the Vexatious Proceedings Act to vary the orders, so as to ensure that a pending application under (former) s 474D of the Crimes Act 1900 (NSW) for an inquiry into the first two of his convictions remained on foot. Her Honour recorded that although Mr Potier had asked the judge not to make a decision, and indeed the file had been closed, the prudent approach was to regard the proceedings as remaining on foot: Attorney General in and for the State of New South Wales v Potier (No 2) [2015] NSWSC 238 at [51]. Her Honour dismissed the application, saying (at [59]-[60]):

“Although the Part 7 application technically remains on foot, Mr Potier took no step to advance the application for a period of almost 7 years. In the meantime, an analysis of the many proceedings instituted by Mr Potier over many years has produced the conclusion that he is a vexatious litigant. I considered it appropriate to exclude the criminal appeal from the consequences of that finding but it by no means follows inexorably that there is merit in the Part 7 application.

I accept that the Court should be loath to impede the pursuit of any avenue of review of a conviction for a serious criminal offence. However, as noted in supplementary submissions filed for the Attorney General (with leave), there is nothing before this court to suggest the existence of any fresh material or argument that has not been considered in the several appeal proceedings that have been pursued since the original s 474D application. There may be new or different arguments beyond those brought forward in those proceedings but that is not a matter I am in any position to judge. The appropriate course, in my view, is for the question of the fate of any further application for an inquiry to be determined within the deliberately restrictive regime of s 14 of the Vexatious Proceedings Act.”

46. In accordance with directions made following the hearing of the appeal, and not opposed by the Attorney, Mr Potier has applied for leave to appeal from that decision too.

Leave to the extent necessary should be granted

47. I return to her Honour’s reasoning on Mr Potier’s application under s 9 at the end of this judgment. For present purposes, it suffices to note that the refusal of Mr Potier’s application under s 9 illustrates that leave is probably required because the vexatious proceedings orders he challenges are interlocutory: Supreme Court Act 1970 (NSW), s 101(2)(e). A deal of authority supports that proposition, including Kay v Attorney-General [2000] VSCA 176; 2 VR 436 at [31]-[40] (Chernov JA, with whom Ormiston and Batt JJA agreed) and Shaw v McGinty (Attorney-General) [2006] WASCA 231 at [18] (Wheeler JA, with whom Steytler P and Buss JA agreed), although it is contrary to what was held in Pedler v Hunters Hill Municipal Council [1976] 2 NSWLR 411 at 414, in respect of orders made under (the former) s 84(2) of the Supreme Court Act. These authorities were reviewed in Klewer v Attorney General in and for the State of New South Wales [2010] NSWCA 219 at [13]-[23]. The Court did not finally resolve the question, because even if the decision in that case were not “interlocutory”, it did not involve a matter at issue of the value of $100,000, within the meaning of s 101(2)(r) (at [23]). On that basis, leave to appeal was required under s 101(2)(e) or (r). It is appropriate to follow the same course here, for s 101(2)(r) unquestionably applies if the decision not be interlocutory.

48. Leave may also be required under s 5 of the Felons Act (if the appeal is a “civil proceeding” for the purposes of that Act, a matter considered but not in this respect determined in Patsalis v State of New South Wales [2012] NSWCA 307; 81 NSWLR 742 at [5]-[6], [43]-[57] and [112]-[117]). Once again, it is not necessary to determine this, for Mr Potier’s application for leave concerns an important civil right, raises issues of general application and quite plainly is neither an abuse of process nor wanting in prima facie grounds. There should be a grant of leave under the Felons Act to the extent necessary. This Court’s decision in Jol v State of New South Wales (1998) 45 NSWLR 283 at 290 establishes that there may be a concurrent hearing of the application under the Felons Act and the substantive proceeding.

49. The Attorney disavowed any suggestion that the appeal brought by Mr Potier was itself subject to the operation of the Vexatious Proceedings Act. That concession was, in my view, properly made. The Vexatious Proceedings Act follows the same form as Queensland legislation (which itself derived from model legislation drafted by the Standing Committee of Attorneys General), in respect of which the same conclusion was reached by the Queensland Court of Appeal in Conde v Gilfoyle [2010] QCA 109 at [15]-[30] (Fraser JA, McMurdo P and Peter Lyons J agreeing). Far from being convinced that the decision is plainly wrong (cf Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492), the conclusion seems to me to be correct. It suffices to observe that there will be a class of cases where orders are made under the Vexatious Proceedings Act which disclose appellable error. Not lightly would the Vexatious Proceedings Act be construed so as to require such appeals to be dismissed 28 days after they were commenced, if, say, there were substantial non-compliance with the requirements upon commencing proceedings imposed by the Vexatious Proceedings Act, which only applied as a result of the operation of an order which (arguably) should not have been made.

The relationship between the Felons Act and the Vexatious Proceedings Act

50. The threshold question in this appeal turns on the relationship between the Felons Act and the Vexatious Proceedings Act. Three logical possibilities, as well as the way to determine which statute is applicable, were identified by Lord Wilberforce in Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538 at 553:

“The problem is one of ascertaining the legislative intention: is it to leave the earlier statute intact, with autonomous application to its own subject matter; is it to override the earlier statute in case of any inconsistency between the two; is it to add an additional layer of legislation on top of the pre-existing legislation, so that each may operate within its respective field?”

51. Both parties sought to enlist the fact that the Vexatious Proceedings Act imposed more onerous requirements in their favour. Mr Potier submitted that the Vexatious Proceedings Act left the earlier Felons Act intact and unaffected, and that were he to be subject to both regimes, that would be contrary to s 7 of the Vexatious Proceedings Act. The Attorney submitted that the Vexatious Proceedings Act applied cumulatively with the Felons Act, and that “this regime clearly contemplates a Vexatious Proceedings Act claim being brought first” (transcript, 25 March 2015, p 39). He noted that in most cases, the cumulative requirements for leave could and would be dealt with at the same time by the same judicial officer. He said that because of the much lower hurdle for leave under the Felons Act, a decision that leave should be granted under the Vexatious Proceedings Act would always carry with it a conclusion that leave would be appropriate under the Felons Act (submissions dated 13 March 2015, paragraph 17).

52. It was not suggested that the Vexatious Proceedings Act overrode the Felons Act and indeed, in light of s 7 which is considered in detail below, that possibility may readily be dismissed. Section 7 is antithetical to a construction whereby the Vexatious Proceedings Act leaves “no room”, as Kitto J put it, for any other regime such as the Felons Act; cf Butler v Attorney-General for the State of Victoria (1961) 106 CLR 268 at 281 and Ferdinands v Commissioner for Public Employment [2006] HCA 5; 225 CLR 130 at [4] and [57]. The same principle was applied in Haddara v The Queen [2014] VSCA 100 at [69] (Redlich and Weinberg JJA).

53. Some of the submissions were framed in terms of “inconsistency” (including “direct”, “indirect” and “operational” inconsistency) between the two State statutes. However, the issue is better framed as one of “contrariety” or contradiction, to use the language of Ferdinands at [4] and [47] and Commissioner of Police for New South Wales v Eaton [2013] HCA 2; 252 CLR 1 at [48] and [98], rather than “inconsistency”. It is to be borne in mind that the resolution of an apparent conflict between two laws enacted by the same legislature is addressed differently from a conflict between laws enacted by different legislatures. The context is “quite different” and principles applicable to the latter do not readily translate to the former: Victorian WorkCover Authority v Esso Australia Ltd [2001] HCA 53; 207 CLR 520 at [44]. The question is not whether one law prevails, but whether the presumption of non-contradiction is displaced.

54. However, before determining whether there is contrariety or contradiction in two laws, it is first necessary to identify their legal meaning. “No conclusion can be reached about whether a later statutory provision contradicts an earlier without first construing both provisions”: Ferdinands at [47] (Gummow and Hayne JJ); Mok v Director of Public Prosecutions (NSW) [2015] NSWCA 98 at [32]. Gummow and Hayne JJ also said in Ferdinands at [18], in a passage applied in Eaton at [48] by Crennan, Kiefel and Bell JJ, that deciding whether the two statutes could not “stand or live together … requires the construction of, and close attention to, the particular provisions in question”. What might seem to be a contradiction requiring reading down or implied repeal may in truth be merely an apparent contradiction, once both laws have been construed, and they have been read together, in accordance with what was said in Re Maritime Union of Australia; ex parte CSL Pacific Shipping Inc [2003] HCA 43; 214 CLR 397 at [28]. This appeal well illustrates the risks of assuming a conflict in the legal meanings of two statutes rather than first attending to whether the conflict is merely apparent, and able to be resolved by the ordinary process of construction.

(a) The Felons Act

55. Section 3 of the Felons Act as originally enacted provided that a person who had been found to have committed a felony was not for that reason incapable of commencing and maintaining any civil proceedings in any court. This overturned an inability to sue at common law which extended at least to felons convicted of capital offences: Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583. Section 3 was long ago repealed, but s 9 provides that it continues to apply to persons convicted of felonies before the abolition of all distinctions between felony and misdemeanour and the extension of the law and practice applicable to misdemeanours to all offences with effect from 1 January 2000 (see Crimes Act 1900 (NSW), s 580E).

56. Sections 4, 5 and 6 of the Felons Act are as follows:

“4 Leave to sue required for persons convicted of serious indictable offences

A person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application.

5 Grant of leave

A court shall not, under section 4, grant leave to a person to institute proceedings unless the court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings.

6 Refusal of leave – appeal

(1)   Subject to subsection (2), a person to whom leave referred to in section 4 has been refused may appeal against the refusal as if the decision to refuse the leave were a decision on a point of law.

(2)   An appeal shall not lie to the Court of Appeal (within the meaning of the Supreme Court Act 1970) from an order refusing leave referred to in section 4 except by the leave of the Court of Appeal.”

Section 7 of the Felons Act provides that neither the applicant for leave nor the putative defendant has a right to appear, either on the hearing of the application, or on an appeal from its refusal.

57. Considered alone, the effect of those provisions upon a person to whom they apply is essentially as follows. Commencement of civil proceedings in a court without leave is in contravention of s 4. Power is conferred under ss 4 and 5 to lift the prohibition by the grant of leave. Leave may only be granted by the court in which the proceedings are to be commenced. Section 5 constrains the power to grant leave to circumstances where the court is satisfied of two things: that the proceedings are not an abuse of process and that there are prima facie grounds for them. A person to whom the sections apply who has been refused leave has a right of appeal under s 6. (It is not necessary for present purposes to construe the closing words of s 6(1) “as if the decision to refuse the leave were a decision on a point of law”.)

58. Identifying the persons to whom that suite of provisions applies is not entirely free from difficulty, because the context in which the Felons Act was enacted and amended suggests the possibility of a narrower field of application than would appear from the text alone.

59. In Dugan, Jacobs J said that there was no clear authority as to whether a person convicted of a non-capital felony was disabled from bringing a civil action (at 602). That gives rise to a question whether ss 3 and 4, as originally enacted, had the narrower effect of replacing an incapacity on the part of persons convicted of capital felonies with a capacity to sue subject to a grant of leave, or had the potentially broader effect of qualifying the right to bring civil proceedings of all persons convicted of felonies. Basten JA and Sackville AJA both raised that possibility in Patsalis at [41]-[42] and [113]. Both of their Honours expressly qualified their views as preliminary (“not necessary to reach a firm conclusion” and “much to be said for the proposition”) because the point was not the subject of argument and not necessary to the result. At least one commentator is broadly supportive of that result: see J Donnelly, “Judicial Review for the Convicted Felon in Australia – a Consideration of Statutory Context and the Doctrine of Attainder” (2012) 16(1) UWSLR 137, 146-154.

60. Although I acknowledge the attraction of that view, I have concluded that the Felons Act means what it says, and imposes a requirement of leave upon all persons who are in custody because they have been convicted of, or found to have committed, a serious indictable offence, irrespective of whether the corresponding felony would have led to any legal incapacity. I reach that conclusion not only because of the ordinary meaning of the language of ss 4-7 of the Felons Act, but also because of the force of s 9(2), which was inserted when s 3 was repealed by the Crimes Legislation Amendment (Sentencing) Act 1999 (NSW) (this was defined as the “1999 amending Act”). Section 9(2) provides that:

“Sections 4-7, as in force immediately before their amendment by the 1999 amending Act, apply to a person who was convicted of a felony before their amendment as if the person had been convicted of a serious indictable offence.”

61. Subsection (2) leaves no room to argue that there were persons convicted of felonies to whom, because they may not have been – nearly two decades previously – subject to a legal incapacity to bring civil proceedings, ss 4-7 did not apply. To the contrary, subs (2) confirms that the requirement of leave applied to all persons convicted of felonies.

62. That being the position for all persons convicted of felonies prior to 2000, it follows that ss 4-7 apply to all persons convicted of, or found to have committed, serious indictable offences after 2000. It could not be the case that the Felons Act applied to all persons convicted of felonies prior to 2000, but only to some persons convicted of serious indictable offences which would have previously corresponded to felonies after 2000.

63. For completeness, I note that my conclusion accords with what was said during the second reading speech by the Minister with carriage of the Felons (Civil Proceedings) Bill, (New South Wales Legislative Council, Parliamentary Debates (Hansard), 14 April 1981 at 5800, the Hon D P Landa):

“Though it was not clear whether [Dugan v Mirror Newspapers Ltd] applied to felons other than capital felons, the later case of Macari v Mirror Newspapers in the New South Wales Supreme Court confirmed that all felons suffer the disability until their sentences expire.”

Macari v Mirror Newspapers Ltd is an unreported decision of Cantor J in the Supreme Court of New South Wales, delivered 4 March 1980. During the subsequent debate, it was said that Dugan and Macari “showed beyond doubt that the New South Wales law still applied to all felonies” (New South Wales Legislative Council, Parliamentary Debates (Hansard), 14 April 1981 at 5801, the Hon L A Solomons). There was no suggestion to the contrary. That tells against the possibility that s 3 amounted to legislative overkill, such that ss 4-7 should be read down. (Whether or not that aspect of Macari – an urgent decision on an interlocutory injunction in proceedings commenced shortly before 5pm on the preceding day – is correct is not something that I express a view about; it suffices for present purposes to note how the effect of Macari was perceived.)

(b) The Vexatious Proceedings Act

64. I turn now to the Vexatious Proceedings Act. Part 2 of the Vexatious Proceedings Act authorises the three superior courts of record in New South Wales to make a “vexatious proceedings order”. The consequence of the making of such an order by the Land and Environment Court or the Industrial Court is confined to proceedings in those courts; the consequence of the Supreme Court making such an order is expressed to extend generally to proceedings in New South Wales. It is unnecessary for present purposes to consider the operation of an order upon proceedings commenced in a federal court situated in New South Wales.

65. The preconditions to the making of a vexatious proceedings order are that the court is satisfied that “the person has frequently instituted or conducted vexatious proceedings in Australia”: s 8(1)(a), or else has acted in concert with a person who is already subject to a vexatious proceedings order: s 8(1)(b). The four elements in s 8(1)(a), “frequently”, “instituted”, “conducted” and “vexatious proceedings”, are addressed below.

66. An order may be made of the court’s own motion, or on the application of a class of people including the Attorney General, the Solicitor General, or a person who has been a defendant in vexatious proceedings: s 8(4). A vexatious proceedings order may not be made without giving the person against whom it is directed an opportunity to be heard: s 8(3). An authorised court may make an order staying all or any part of proceedings already instituted by the person, or prohibiting the person from instituting proceedings: s 8(7)(a) and (b); other orders considered by the court to be appropriate may also be made: s 8(7)(c).

67. “Institute” is broadly defined in s 5, and expressly includes “the taking of a step or the making of an application that may be necessary before proceedings can be started”. “Institute” also expressly extends to “the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender”, with the result that the Vexatious Proceedings Act clearly extends to at least some criminal proceedings. “Proceedings” is likewise broadly and inclusively defined in s 4 to extend to:

“(a)   any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and

(b)    any proceedings (including any interlocutory proceedings) taken in connection with or incidental to proceedings pending before a court or tribunal, and

(c)    any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way.”

68. “Vexatious proceedings” are defined in s 6, once again, broadly and inclusively, to extend to:

“(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.”

69. The remaining two elements in the jurisdictional precondition in s 8(1)(a), “frequently” and “conducted”, are undefined.

70. Section 9 permits vexatious proceedings orders to be varied or set aside. It specifies no time limit. Section 10 authorises a vexatious proceedings order which has been set aside to be reinstated if the person has, within five years of its being set aside, instituted or conducted vexatious proceedings in an Australian court or tribunal. Section 11 provides for the keeping of a register, and the publication, of vexatious proceedings orders.

71. Part 3 of the Vexatious Proceedings Act provides for the consequences of a vexatious proceedings order being made. Section 13(1) prohibits a person from instituting proceedings without leave. Section 13(2) provides that proceedings commenced without leave are stayed until they are dismissed (or taken to be dismissed) under this section. Section 13(3) is unusual and important: it provides that such proceedings are “taken to be dismissed by the court or tribunal in which they were instituted on the expiry of the period of 28 days after the proceedings were first instituted, unless the proceedings are sooner dismissed under subsection (4).” Section 13(4) provides that either the authorised court, or the court or tribunal in which proceedings have been instituted, may make orders declaring that subs (2) and (3) apply, and dismissing the proceedings prior to the 28 day period.

72. Section 14(2) authorises a person subject to a vexatious proceedings order to apply for leave from an “appropriate authorised court”, as specified in s 12 (which is the Supreme Court, unless the vexatious proceedings order has been made by the Land and Environment Court or the Industrial Court and the person wishes to institute proceedings in those courts), and thereby avoid the consequences of s 13. An application for leave must be accompanied by an affidavit listing all previous applications for leave and all other proceedings commenced in Australia, and must disclose “all facts material to the application, whether supporting or adverse to the application, that are known to the applicant”: s 14(3). The application must not be served unless the court first orders: s 14(4). Section 14(5) empowers an appropriate authorised court to dismiss the application under s 15 or grant it under s 16. Section 14(6) provides that:

“Despite any other Act or law, the applicant may not appeal from a decision disposing of the application.”

73. Section 15 provides that:

“(1)    An appropriate authorised court must dismiss an application made under section 14 for leave to institute proceedings if it considers:

(a)    the affidavit required by section 14(3) does not substantially comply with that subsection, or

(b)    the proceedings are vexatious proceedings, or

(c)    there is no prima facie ground for the proceedings.

(2)    The application may be dismissed even if the applicant does not appear at the hearing of the application.”

74. Conversely, s 16 empowers an appropriate authorised court to grant an application for leave, but only if first it has ordered each “relevant person” (including the Attorney General, Solicitor General, and all potential defendants) to be served and each, as well as the applicant, has had an opportunity to be heard, and only if it is satisfied that the proceedings are not vexatious proceedings and have prima facie grounds.

(c) Comparison between Felons Act and Vexatious Proceedings Act

75. It will be seen that both the Felons Act and the Vexatious Proceedings Act prevent the commencement of proceedings without leave, but do so in different ways. Five categories of statutory prohibitions upon the commencement of proceedings were identified in 2 Elizabeth Bay Road Pty Ltd v The Owners - Strata Plan No 73943 [2014] NSWCA 409 at [90]-[94]. Sections 13 and 15 of the Vexatious Proceedings Act illustrate the second category, namely, where the statute requires the court in which proceedings have been commenced to deal with the proceeding in a particular way. Another example may be seen in s 7 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), applied in Eberstaller v Poulos [2014] NSWCA 211; 313 ALR 165. On the other hand, ss 4 and 5 of the Felons Act illustrate the fifth category, namely, provisions which leave it to the ordinary discretionary powers of the court to enforce the statutory prohibition. In such cases, the principles stated in Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364 at [20]-[23] and [36]-[37] are applicable. That result accords with what was held by this Court in Jol v State of New South Wales at 290 and by Campbell J in Vorhauer v NSW Minister for Health [2005] NSWSC 797 at [23]-[25] (as his Honour there noted, what was said in Potier v Magistrate Moore [2004] NSWSC 1131 at [16] to the contrary must be regarded as per incuriam).

76. The approach adopted in the Felons Act results in greater flexibility. It permits leave to be granted or refused initially, as a threshold issue, or concurrently with the hearing on a final basis of the proceedings brought by the person in custody. Indeed this Court found it convenient to hear Mr Potier’s leave applications and the appeal concurrently, a course seemingly not open under the regime established by the Vexatious Proceedings Act.

75. Three main differences between the Felons Act and the Vexatious Proceedings Act emerge from what has been said above. First, while the Felons Act imposes a leave requirement on commencing civil proceedings upon a pre-defined limited class of persons (broadly, persons in custody as a result of being convicted of a serious indictable offence), the Vexatious Proceedings Act creates its own regime pursuant to which a leave requirement is imposed (the making of a vexatious proceedings order). Secondly, the way in which leave is granted or refused differs. There are different parties, different rights to be heard, different procedural requirements with respect to an application, somewhat different criteria on which leave is granted, and very different appeal rights under the two regimes. Thirdly, the regime established by the Vexatious Proceedings Act is not confined to civil proceedings, and is more prescriptive, notably in respect of what an applicant for leave must do, when leave must be refused, and, especially, the consequences of not obtaining leave.

Section 7 of the Vexatious Proceedings Act

78. Section 7 of the Vexatious Proceedings Act is different in nature from all of the provisions previously mentioned. Rather than itself having substantive force, s 7 is directed to the relationship between the Vexatious Proceedings Act and other jurisdiction and powers of courts. It was at the forefront of Mr Potier’s submissions on appeal.

79. Section 7 is in the following terms:

“7 Inherent jurisdiction and powers of courts and tribunals not limited

This Act does not limit or otherwise affect any inherent jurisdiction or any powers that a court or tribunal has apart from this Act to restrict vexatious proceedings.”

It is convenient immediately to observe the following about that provision.

80. First, it is a provision whose sole purpose is to address the impact of the Vexatious Proceedings Act on such other jurisdiction and powers that a court or tribunal has apart from the Vexatious Proceedings Act.

81. Secondly, s 7 is drafted in language of generality. Not only does the Vexatious Proceedings Act not “limit”, but it also is expressed not to “otherwise affect”, the jurisdictional powers of courts or tribunals. Further, what is neither limited nor otherwise affected is “any inherent jurisdiction” or “any powers” that a court or tribunal has.

82. Thirdly, s 7 does not of itself show that there is a conflict between the Vexatious Proceedings Act and other mechanisms restricting vexatious proceedings. The orthodox approach in determining the combined effect of two statutes enacted by the same legislature where there is a hierarchical provision such as s 7 is to construe the two statutes independently as if s 7 were absent, and then, if it appears that s 7 is engaged, to give effect to it. That approach was applied in Re Bland Bros and the Council of the Borough of Inglewood (No 2) [1920] VLR 522 at 533, where Irvine, Cussen and McArthur JJ said of the functionally equivalent words “Notwithstanding anything in this Act contained”:

“As to the introductory words, the section should first be construed without them, and then, if there is anything in the other provisions of the Act inconsistent with the interpretation so arrived at, these other provisions must yield.”

The same reasoning was applied in Piper v Corrective Services Commission of NSW (1986) 6 NSWLR 352 at 358-359 (Kirby P, Hope and Samuels JJA) and DPP v Leys & Leys [2012] VSCA 304; 296 ALR 96 at [157] (Redlich and Tate JJA and T Forrest AJA).

83. Fourthly, s 7 distinguishes between courts’ and tribunals’ jurisdiction and powers, a distinction which “has been made repeatedly” by the High Court: Lacey v Attorney-General for the State of Queensland [2011] HCA 10; 242 CLR 573 at [48]. (The same distinction may be seen, although a different approach has been taken, in ss 7 and 8 of the Vexatious Proceedings Act 2014 (Vic), whose effect is that the Act prevails over all other powers and any statutory jurisdiction, but does not limit a court’s inherent or implied jurisdiction.)

84. While s 7 is confined by reference to “any inherent jurisdiction”, it applies more broadly to “any powers”. The repetition of the generalising word “any” and the qualification of “jurisdiction”, but not “powers”, by the adjective “inherent” makes it plain, as was submitted on behalf of Mr Potier, that s 7 extends to statutory powers that a court or tribunal might have. It would of course also extend to non-statutory powers a court or tribunal might have (for example, to make an order such as was made in Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324; 81 NSWLR 771). I am conscious that the section’s heading is differently worded, omitting “any” and drafted in a way which supports the conclusion that “inherent” qualifies both “jurisdiction” and “powers”. However, and consistently with s 35(2) of the Interpretation Act 1987 (NSW) (which provides that the heading is not part of the Act), the heading cannot displace the force of the double use of “any” and the confined use of “inherent” which emerges directly from the statutory text.

85. In short, s 7 has the potential to prevent the Vexatious Proceedings Act from affecting the operation of a court’s statutory powers to restrict vexatious proceedings. There are, accordingly, two questions: does the Felons Act confer a power which answers the description of a power “to restrict vexatious proceedings”, and, if so, would the operation of the Vexatious Proceedings Act, putting to one side s 7, “limit or otherwise affect” that power?

(a) Does the Felons Act confer a power to restrict vexatious proceedings?

86. I would answer the first question affirmatively. The Felons Act precludes the grant of leave unless the court is satisfied that the proceedings are not an abuse of process and have prima facie grounds. Although “vexatious proceedings” for the purposes of the Vexatious Proceedings Act are defined somewhat more widely, they include all proceedings which are an abuse of process and which lack prima facie grounds. Those notions are central to the idea of what amounts to a vexatious proceeding under the Vexatious Proceedings Act. Putting the matter differently, every proceeding which cannot be the subject of leave pursuant to s 5 of the Felons Act necessarily answers the description of a “vexatious proceeding” for the purposes of the Vexatious Proceedings Act.

87. It readily follows that the power to grant or refuse leave, or to grant leave on terms, under s 5 of the Felons Act is a power to restrict vexatious proceedings within the meaning of s 7 of the Vexatious Proceedings Act. For the same reasons, the power to allow or refuse an appeal under s 6 of the Felons Act is also a power to restrict vexatious proceedings.

(b) Does the Vexatious Proceedings Act “limit or otherwise affect” the jurisdiction or powers a court would otherwise have to restrict vexatious proceedings?

88. The Attorney submitted that the Felons Act and the Vexatious Proceedings Act could readily “stand” or “live” together by adopting the approach that the regime imposed by the Vexatious Proceedings Act took priority, noting that (a) in many cases the same judicial officer could determine leave under both statutes and (b) if not, then because the obligations imposed by the Vexatious Proceedings Act were more onerous, a grant of leave under it would entail a grant of leave under the Felons Act. That submission was supported by (a) the broad definition of instituting civil proceedings in s 5(1)(a) of the Vexatious Proceedings Act, which ex facie extends to an application under the Felons Act for leave to institute civil proceedings (it is “the making of an application that may be necessary before proceedings can be started”), (b) the mandatory stay of proceedings commenced in contravention of s 13(1) imposed by s 13(2), and (c) the mandatory dismissal of such proceedings 28 days later pursuant to s 13(3). Those matters were said to require an approach giving primacy to the Vexatious Proceedings Act.

89. However, the Attorney’s submission elides the separate tasks of (a) construing of both statutes so as to determine whether the apparent conflict is real, followed by (b) resolving the conflict if it turns out to be real as opposed to merely apparent. Admittedly, those tasks overlap, especially when it comes to s 7, whose purpose is to avoid conflict and whose premise is that there might be, but for it, a limitation or affectation of some other jurisdiction or power. But the key to the resolution of this appeal is the double effect s 7 has upon the construction for which the Attorney contends. The Attorney’s construction collides with s 7 of the Vexatious Proceedings Act, because, as was submitted by Mr Potier, in many respects, the powers of a court under the Felons Act are “limited” or “otherwise affected” if the Attorney’s construction (that the Vexatious Proceedings Act applies to persons already subject to the Felons Act) be correct. However, to anticipate what will be seen below, that does not mean that Mr Potier’s primary submission that the Vexatious Proceedings Act does not apply to him at all is correct; instead it will be seen that s 7 requires the Vexatious Proceedings Act to be read in such a way so as to preserve the operation of both the Felons Act and the Vexatious Proceedings Act.

90. That s 7 is engaged by the Attorney’s construction is readily apparent from the following considerations, which proceed on the basis of the ordinary meaning of the Vexatious Proceedings Act disregarding s 7. First, leave may be neither sought nor granted under the Felons Act. This is because the application for leave itself falls within the extended definition of “instituting proceedings” under the Vexatious Proceedings Act, and so would be prohibited by s 13(1) of that Act. Even if an application for leave were made, the proceedings, in compliance with s 13(2), are stayed and the court’s only power is to dismiss them under s 13(4) within the 28 day period after which they are taken to be dismissed by reason of s 13(3).

91. Secondly, the tests for the grant of leave are different. The definition of “vexatious proceedings” under the Vexatious Proceedings Act is more broadly expressed than the criteria for the grant of leave under s 5 of the Felons Act. That means that leave might be granted under s 5 where it must be refused under the Vexatious Proceedings Act. Additionally, the authorised court under the Vexatious Proceedings Act must dismiss an application for leave if it considers that the affidavit required by s 14(3) does not substantially comply with that subsection. There is no such requirement under the Felons Act.

92. Thirdly, the two phases of the determination of an application for leave under the Vexatious Proceedings Act are different from what occurs under the Felons Act. The Vexatious Proceedings Act requires an initial determination by the Court without any other person being served, followed by service and giving an opportunity to be heard to the Attorney General, the Solicitor General, the prospective defendants and other persons. In contrast, the Felons Act denies the existence of any right to be heard on the part of a prospective defendant save by leave. (Separate provision is made as to the applicant’s right to be heard.)

93. Fourthly, a person dissatisfied with the refusal of leave under the Felons Act has a right of appeal. In contrast, a person dissatisfied with the refusal of leave under the Vexatious Proceedings Act “may not appeal” from the authorising court’s decision. That is not to say that other forms of review might not lie in such circumstances, but that serves to emphasise the point of difference: there are different appellate rights, including possibly to different bodies exercising appellate or supervisory jurisdiction, from the refusal of leave under the two sections.

94. Take the common case where the same court has power to grant leave under both Acts, and a judge forms the view that the proceedings are an abuse of process and refuses leave under both Acts. The Felons Act confers a right of appeal; the Vexatious Proceedings Act makes it plain there is none, and further would impose an obligation to obtain leave before bringing the appeal under s 6 of the Felons Act. The effect of the Vexatious Proceedings Act upon the regime established under the Felons Act is apparent.

95. Dixon J found considerations of this kind dispositive in Ffrost v Stevenson (1937) 58 CLR 528. One question on which the Court divided was whether the provisions of the Service and Execution of Process Act 1901 (Cth) for the surrender of fugitives between the Mandated Territory of New Guinea and the Commonwealth were repugnant to Orders in Council made under the Fugitive Offenders Act 1881 (Imp). If so, then the former were to that extent void by reason of s 2 of the Colonial Laws Validity Act 1865 (Imp). Both regimes conferred power on a magistrate in similar terms, but the rights of appeal diverged. Dixon J wrote at 572-573:

“Up to the point of the apprehension of the prisoner and his being brought before the magistrate, the procedure prescribed by the two sets of provisions is almost identical; so nearly so that if both were valid, the magistrate would be called upon to exert both authorities simultaneously. But, as appears from the examination made of the rival provisions, at this point the divergence begins. If the magistrate made an order for the return of the prisoner it would be subject to two varying courses of appeal and review and would involve somewhat different consequences in many other respects, accordingly as it was considered an order under the Commonwealth provisions or considered an order under the Imperial Act. I think that this must amount to a repugnancy, and, of course, it is the Commonwealth provision which, to the extent of the repugnancy, must give way.”

96. McTiernan J was of the same view (at 611-612). Latham CJ and Evatt J regarded the coexistence of two different rights of appeal as inconvenient, but falling short of repugnancy (at 560-561 and 604-606). The fifth member of the Court, Rich J, avoided dealing with the point (at 563-564).

97. I find Dixon J’s reasoning persuasive. Even so, it is unnecessary to consider further the relative cogency of the various judgments for present purposes, because the difference under the Felons Act and the Vexatious Proceedings Act is stark: rather merely than there being different rights of appeal, there is an express conferral of an appeal by s 6 of the Felons Act, and the express denial of any right of appeal by s 14(6) of the Vexatious Proceedings Act.

98. Considerations such as those compel the conclusion that the Vexatious Proceedings Act would, on the Attorney’s construction, “limit or otherwise affect” the existing powers of courts under the Felons Act, putting to one side s 7. It follows that s 7 is engaged. Its operation is to cut back the erstwhile generality of the Vexatious Proceedings Act. Before explaining how that occurs, I deal with a further submission advanced by Mr Potier which was directed to the same end.

Specific provisions not overridden by general provision?

99. In addition to relying on s 7, Mr Potier also invoked the principles associated with the various generalia specialibus non derogant maxims whose effect is that later general statutes are not construed so as to override earlier specific statutes. A specific regime may, where it applies, exclude more general provisions which otherwise might be engaged: Bruton Holdings Pty Ltd (in liq) v Commissioner of Taxation of the Commonwealth of Australia [2009] HCA 32; 239 CLR 346 at [17]. That led to an exchange of submissions as to which of the Felons Act and the Vexatious Proceedings Act was general and which was specific. The Attorney said that the class of persons to whom the Felons Act applied was far larger than the class of persons against whom a vexatious proceedings order had been made. That is plainly true, but not decisive: the Attorney’s submission fails to distinguish between the universal operation of Pt 2 of the Vexatious Proceedings Act and the narrow operation of Pt 3 of the same Act. A countervailing consideration is that the Felons Act applies only to civil proceedings, and undoubtedly the orders made under the Vexatious Proceedings Act apply more widely.

100. The Attorney was correct to submit, by reference to what Kirby J had said in Ferdinands at [106]-[107], that it was by no means clear which provision was general and which specific, and that “[e]ach regime is general in one sense and specific in another” (submissions, 13 March 2015, paragraph 20). In truth, some parts of the Vexatious Proceedings Act are prescriptively specific (especially, the provisions relating to the mandatory dismissal and refusal of leave) and others are general (such as the definition of “institute” and “proceedings”). The consequential aridity of the debate as to the operation of the maxims well illustrated what Windeyer J said in Cobiac v Liddy (1969) 119 CLR 257 at 268:

“[W]hether a later Act has taken away a discretionary power given by an earlier Act must depend upon a comparison of the actual language of each, to see whether they do stand together or whether the latter has, pro tanto, abrogated the former. The question is not answered by maxims.”

101. Rather than relying on maxims, a better course is to proceed directly to considering the imputed legislative intention, as Lord Wilberforce indicated in Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538 in the passage reproduced above. His Lordship continued at 553-554:

“[E]ven where the earlier statute deals with a particular and limited subject matter which is included within the general subject matter with which the later statute is concerned, it is still a matter of legislative intention, which the courts endeavour to extract from all available indications, whether the former is left intact, or is superseded[.]”

102. In R v Pora [2000] NZCA 403; [2001] 2 NZLR 37, Elias CJ and Tipping J applied the same approach at [43]:

“We do not find the proposition that the specific overrides the general helpful in deciding whether s2(4) of the 1999 Amendment Act prevails over s4(2). For that the surer guides are the language used in the provisions, the place occupied in the scheme of the Act by each, and the legislative and common law presumptions brought into play by the subject-matter.”

103. In a case such as here, where s 7 squarely and exclusively is directed to the relationship, it is the operation of s 7 that will be central to the question of construction of the two statutes.

The Vexatious Proceedings Act does not apply until leave has been obtained under the Felons Act

104. Where a person is in custody by reason of having been convicted of, or found to have committed, a serious indictable offence, he or she is required by reason of s 4 of the Felons Act to obtain leave before commencing civil proceedings in a court, and leave may only be granted if the court is satisfied that the proceedings are not an abuse of process and there is prima facie ground for them. I have concluded that s 7 of the Vexatious Proceedings Act is engaged, so as to ensure that courts’ powers under ss 5 and 6 of the Felons Act continue unaffected by the Vexatious Proceedings Act. By s 7 the Legislature has spoken expressly to the possibility that the Vexatious Proceedings Act might limit or affect other powers of courts and tribunals; contrast the problem identified by Gleeson CJ in Ferdinands at [4]:

“The problem is one of statutory interpretation; a problem that arises only because the legislature did not state an intention either that the two statutory regimes should both apply in such a case, or that the second regime should apply to the exclusion of the first.”

105. Where, as here, s 7 does state an intention as to the relationship between the Vexatious Proceedings Act and other regimes, it is natural to give effect to it. An example of a provision which is directed exclusively to preserving an existing body of law was considered by the Court of Appeal in Inter Lotto (UK) Ltd v Camelot Group plc [2003] EWCA Civ 1132; [2003] 4 All ER 575. A section in the Trade Marks Act 1994 (UK) provided that “nothing in this Act affects the law relating to passing off”. At [36], Carnwath LJ, with whom Keene and Pill LJJ agreed, said that the clear effect of the section was “to confirm that the law of passing off is preserved, notwithstanding any apparent conflict or overlap with the provisions of the Act”, and gave full effect to it.

105. But what is the effect upon the Vexatious Proceedings Act of s 7? There is force in Mr Potier’s construction, which was simply that where the Felons Act applied to a person, the Vexatious Proceedings Act did not. However, that is but one way of ensuring that the powers conferred by the Felons Act are neither “limited” nor “otherwise affected”. I have concluded that s 7 has a narrower effect.

106. As was noted in Patsalis at [56], the Vexatious Proceedings Act is a “statutory regime where there has been a conscious attempt to be comprehensive in terms of the proceedings for which leave is required”. That may be seen from the width of the defined terms “proceedings” and “institute” and in the requirement that a register of all persons subject to a vexatious proceedings order be maintained. It would be wrong in those circumstances to give to s 7 a broader disabling effect than is necessary to preserve the statutory powers to restrict vexatious proceedings under the Felons Act.

107. Test the matter this way. Suppose an application were made under the Vexatious Proceedings Act for a confined order, preventing the institution of criminal proceedings by a person to whom the Felons Act applied (for example, a person in prison having been convicted of a serious indictable offence who has repeatedly commenced private prosecutions against police officers or prosecutors which were shown to be abuses of process). On any view, the commencement of a private prosecution is the institution of proceedings and falls therefore within the Vexatious Proceedings Act, as well as being outside the scope of the Felons Act (which is confined to civil proceedings in a court). It is therefore clear that the Vexatious Proceedings Act, to the limited extent it was invoked, could not limit or otherwise affect the operation of the Felons Act. But Mr Potier’s construction would not permit the Attorney General, or the Commissioner of Police, or the Director of Public Prosecutions, to seek a vexatious proceedings order in those circumstances. Given the generality of the rest of the Vexatious Proceedings Act, I would not lightly reach that conclusion, especially if an alternative construction were available.

108. An alternative construction is available, and one which adheres to the language of the statutory command in s 7. Section 7 is directed to preserving, relevantly, a court’s powers to restrict vexatious proceedings. The power to refuse leave under the Felons Act, or grant leave conditionally, is such a power. It follows that s 7 applies to exclude from the definition of “institute” the making of an application under ss 5 and 6 of the Felons Act, at least for the purposes of the regime in Pt 3 of the Vexatious Proceedings Act. The consequence is that a person such as Mr Potier to whom the Felons Act applies may not commence civil proceedings in a court without obtaining leave under s 5 of the Felons Act. If he or she does commence a civil proceeding contrary to the Felons Act, it is liable to be dismissed for non-compliance with s 4 of that Act. However, if leave is granted, then the prohibitions on instituting proceedings without obtaining leave under the Vexatious Proceedings Act are engaged. Moreover, if leave is not required under the Felons Act (say, because the person wishes to commence a private prosecution) then the Vexatious Proceedings Act applies unaltered.

109. Mr Potier’s broader submission ultimately requires s 7 to do more work than its words can readily bear. It is one thing to preserve statutory powers to restrict vexatious proceedings. It does not follow that other powers, which also restrict vexatious proceedings, cannot be imposed cumulatively. To the contrary, there is nothing in s 7, nor elsewhere in the Vexatious Proceedings Act, entailing that broader result.

110. In that way, the regime established by the Felons Act is preserved. The automatic stay imposed by s 13(2) and dismissal under s 13(3), and the limited orders available under s 13(4) of the Vexatious Proceedings Act do not apply; instead, the court in which proceedings are sought to be commenced exercises the power to grant or refuse leave under s 5 of the Felons Act. If leave be refused, the right to appeal may be exercised (for this again is a power to restrict vexatious proceedings and so preserved by s 7). However, if leave be granted (either at first instance or on appeal), then the commencement of proceedings would engage the prohibition in s 13(1) and the balance of the regime in the Vexatious Proceedings Act.

111. If proceedings were sought to be commenced in the same court which made the vexatious proceedings order, then, as the Attorney submitted, the same judicial officer could grant or refuse leave at the same time under both Acts. If proceedings were sought to be commenced in a different court, then the construction summarised above gives rise to the possibility of inconsistent grants or refusals of leave. But I do not regard that as a telling factor against the construction outlined above. It is not unusual for there to be multiple bases for a requirement of leave. For example, the applicant who seeks leave to appeal from an interlocutory decision where one of the respondents has been made bankrupt confronts two requirements for leave, because the State Legislature has qualified the right of appeal in all cases by requiring leave where the decision is interlocutory, and the Commonwealth Parliament has enacted a requirement of leave to commence proceedings against persons subject to a sequestration order. (Indeed, such leave may only be granted by the Federal Court or the Federal Circuit Court.) True it is that the construction which I favour carries with it the peculiarity that the cumulative requirements for leave are substantially overlapping. It might be asked: why have a double determination of abuse of process and prima facie grounds, especially when that determination may be required to be made by different courts and with submissions and evidence from different parties and at different times? I agree with what Basten JA has written as to the difficulties of dual regulation. However, I do not regard this anomalous result as sufficient to justify acceptance of Mr Potier’s primary submission.

112. It follows that Mr Potier’s primary ground of appeal, that the orders should be set aside because the Vexatious Proceedings Act does not apply to a person subject to the Felons Act, must be dismissed.

Was there appellable error in the conclusion that Mr Potier had frequently instituted or conducted vexatious proceedings?

(a) The meaning of “frequently”

114. The power to make an order under the Vexatious Proceedings Act is conditioned upon a court being satisfied that the person has “frequently” instituted or conducted vexatious proceedings in Australia. The meaning of a word like “frequently” turns very much on its context; that is no different from many other protean words (such as “adversely affect” and “mistake”: cf Independent Commission Against Corruption v Cunneen [2015] HCA 14 at [2] and [57] and CTM v The Queen [2008] HCA 25; 236 CLR 440 at [7]). It is not possible to articulate a precise test. However, the following two matters relevant to its construction for the purposes of this appeal may be noted. Each supports the conclusion that “frequently” is a relatively low threshold.

115. First, the change in language from the predecessor provision (s 84 of the Supreme Court Act) of “habitually and persistently” was deliberate, and plainly lowered the threshold condition.

116. Secondly, there are vexatious proceedings and vexatious proceedings. It is one thing to file urgent appeals or applications for judicial review which cause substantial disruption to courts and other litigants and participants in the legal system (for example, the adjournment of a trial), or to make serious allegations of fraud unfounded in the evidence. It is quite different to encounter some poorly known legal doctrine which denies reasonable grounds to the proceedings or renders them technically an abuse of process, or to file a series of applications for the annulment of decisions of magistrates (I have in mind the nine applications for annulment made by Mr Viavattene all listed and determined on the same day: see Viavattene v Attorney General (NSW) [2015] NSWCA 44 at [70]). That is to say, both the quality of the vexatiousness of a proceeding, and the nature of the proceeding itself, inform the assessment of frequency.

117. I can readily envisage circumstances where a litigant commences only a handful of large proceedings, making serious allegations without any proper basis, but which occupy a significant amount of time and resources of parties and the courts, which could satisfy the statutory test of “frequently”. This illustrates the fact that “[t]he issue posed by the statutory term “frequently” is not to be assessed merely by an arithmetic calculation”: Viavattene at [49].

118. Each of those considerations favour “frequently” being a relatively low threshold.

119. The parties exchanged submissions on whether the proportion of proceedings instituted by a person being found to be vexatious was relevant to whether the threshold condition is satisfied. I do not think that it is. The statute requires the Court to be satisfied that a person has instituted or conducted vexatious proceedings frequently; whether the proportion of all proceedings instituted or conducted by the person which are vexatious is high or low does not bear upon that question. By the same token, suppose the question is whether a traveller will frequently encounter rabid dogs in a particular area. The answer does not turn on how many non-rabid dogs the traveller is likely to encounter in the area.

120. That said, the proportion of proceedings which are vexatious is highly relevant to the exercise of discretion to make an order, if the threshold condition is satisfied. For an order may bear upon all proceedings instituted or conducted by a person, and it will be essential for the Court to bear in mind its operation on existing and likely future proceedings, particularly those which are not vexatious. As will be seen below, this is crucial to the re-exercise of discretion in respect of Mr Potier.

(b) The 22 proceedings regarded by the primary judge as vexatious

121. The parties proceeded on the basis that it was sufficient to have regard to the judgments regarded by the primary judge as vexatious; there is no occasion therefore to pause to consider whether that approach is correct, having regard, inter alia, to s 91 of the Evidence Act 1995 (NSW). Indeed, there was no real challenge on appeal to the trial judge’s conclusion on the threshold question whether Mr Potier had frequently instituted or conducted vexatious proceedings.

122. I have doubts about whether some of the 22 proceedings were in fact vexatious proceedings. Those doubts fall into three main categories.

123. The first is whether interlocutory criminal applications arising out of a prosecution brought against a person can fall within the definition of “institute” or “conduct” (as opposed to a private prosecution instituted by the vexatious litigant). I do not repeat what I have earlier said in Viavattene v Attorney General (NSW) at [78], and see also at [24] (Basten JA). Five of the 22 proceedings fall into this category: see [93]-[95], [131]-[134], [135]-[143], [171]-[176] and [183]-[184] of the reasons of the primary judge.

124. The second is whether an application for leave under the Felons Act can itself amount to the “institution of proceedings”. Since s 7 brings about the result that such an application is not the “institution of proceedings” for the purposes of Pt 3 of the Vexatious Proceedings Act, can it still be the institution of proceedings for the purposes of Pt 2 of the same Act? It strikes me as an unlikely result that the operation of the Felons Act could itself be used to ground an application under the Vexatious Proceedings Act. The Kafkaesque quality of the position was captured by the presiding judge during argument: “You impose a constraint and then when people try to exercise their rights within the constraint you impose a greater restraint.”

125. The third arises from the fact that from time to time Mr Potier has secured the services of legal practitioners. Two of the 22 proceedings relied on by the primary judge were applications conducted by a barrister or solicitor: R v Potier [2005] NSWCCA 256 and Potier v General Manager, Dawn De Loas Correctional Centre [2012] NSWCA 352 (and see related procedural judgment: [2012] NSWCA 353) (the former proceeding is also one of the five interlocutory criminal applications referred to above). An application made by counsel is capable of amounting to a vexatious proceeding, but the position where a person appears by a legal practitioner is entirely different from the position where the person is unrepresented. In the former case, the person is at least in any ordinary case entitled to assume that counsel is conscious of his or her obligations to the Court, and under the Civil Procedure Act 2005 (NSW), and would not maintain an application which is an abuse of process or lacking in reasonable grounds. At least ordinarily, it would be necessary to treat such a proceeding differently in the consideration of whether an order under the Vexatious Proceedings Act were to be made; cf Viavattene v Attorney General (NSW) at [65]. That did not occur, so far as the reasons disclose. To be sure, in at least one of those cases, a legal practitioner had appeared on short notice, Mr Potier having instituted the proceedings without legal assistance.

126. None of those matters was the subject of argument, and it is not necessary for me to express a concluded view on any of them. Even so, and taking the view most favourable to him, Mr Potier did not point to any error as to the primary judge’s conclusions as to the remainder. Those remaining decisions, considered alone, suffice to sustain her Honour’s conclusion that the s 8 power was available.

Was appellable error shown in the order made by the primary judge?

127. It will be recalled that the primary judge made orders extending to all existing and future proceedings, except for Mr Potier’s pending appeal against conviction and interlocutory applications relating to that appeal. The broad discretionary power exercised by her Honour is reviewable in accordance with the civil analogue of House v The King (1936) 55 CLR 499. Appellable error, warranting the re-exercise by this Court of the power under s 8, is established by both of the following two matters.

128. First, Mr Potier continues to be subject to the Felons Act requirements of leave for civil proceedings. I have concluded that on the proper construction of the Felons Act and the Vexatious Proceedings Act, those applications are to be determined first. Her Honour appears to have had no regard to the consequence of the cumulative requirements for leave created by her order. Mr Potier submitted that the primary judge’s order against an incarcerated felon was substantially unjust and unreasonable in the sense employed in House v The King (amended summary of argument, 20 February 2015, paragraph 39). I agree that it is a matter to which regard should expressly have been had.

129. Secondly, either the Vexatious Proceedings Act applies to interlocutory criminal applications or it does not. If it does not, then the order imposed is too wide. If it does, then careful attention needed to be given to exceptions to it. Although the primary judge carved out of the orders she made interlocutory applications in Mr Potier’s pending appeal, including an application for bail (which was ultimately heard and refused), I respectfully disagree that that was sufficient. Suppose Mr Potier, after his release, is arrested on an unrelated charge. It would be an extraordinary thing for an application for bail on that charge to be subjected to the onerous obligations of the Vexatious Proceedings Act (including in all probability an application to a different court from that which could grant or refuse bail). Indeed, as the primary judge observed at [219]:

“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.”

Orders under the Vexatious Proceedings Act such as those from which this appeal is brought apply indefinitely, in circumstances not all of which can be anticipated, and place a heavy burden upon a person. As noted in Viavattene at [79], “it would seem desirable in most if not all cases to consider whether provision should be made carving out certain categories of proceedings which may be instituted without leave”. The example above concerning bail suffices to demonstrate that insufficient consideration was given to this.

Re-exercising the power under s 8 of the Vexatious Proceedings Act

130. This appeal is by way of rehearing, pursuant to s 101 of the Supreme Court Act. The power under s 8 of the Vexatious Proceedings Act is exercised in light of the material before this Court. The Attorney General pointed to nine decisions in proceedings commenced by Mr Potier, subsequent to the primary judge reserving her decision. Those are: Potier v The Queen [2013] HCA Trans 207; Potier v North Queensland Regional Council [2013] QSC 344; R v Potier [2014] NSWSC 131; Potier v Attorney General in and for the State of New South Wales [2014] NSWCA 256; Potier v R [2014] NSWCCA 157; Potier v R [2014] NSWCCA 177; Potier v The State of New South Wales [2014] NSWSC 1271; Potier v State of New South Wales [2014] NSWCA 359 and Attorney General in and for the State of New South Wales v Potier (No 2) [2015] NSWSC 238.

131. Importantly, the Attorney accepts that eight of those nine were not vexatious.

132. The exception is Potier v State of New South Wales [2014] NSWSC 1271, which was Mr Potier’s application for the writ of habeas corpus, based on an argument, inter alia, that the conditions of Mr Potier’s incarceration, and/or the conduct of the State Parole Authority, rendered his initially lawful imprisonment unlawful (at [27]-[30]). While Garling J ultimately concluded (at [86]) that there was “no legal authority which supports the propositions for which Mr Potier contends”, his Honour had expressly left the issue raised by Mr Potier’s application open in his earlier decision in Potier v The General Manager, MSPC Area 2 Long Bay Correctional Centre [2012] NSWSC 233 at [24]:

“There is an outstanding question whether an otherwise lawful imprisonment may be rendered unlawful by reason only of the conditions of detention. Alternatively put, the question is whether a writ of habeas corpus can extend to provide a remedy with respect to the conditions under which a person is held in otherwise lawful detention.”

133. His Honour also noted at [26]-[27] that:

“The Court of Appeal in Prisoners A-XX inclusive v State of New South Wales (1995) 38 NSWLR 622, found it unnecessary to decide whether:

“a prisoner enjoys a right of ‘residual liberty’ vis-a-vis the State and whether the writ of habeas corpus runs where a person is illegally held in a prison within a prison.”

Their Honours also did not determine whether there was any authority to support the submission that ‘intolerable conditions’ were sufficient to enable a court to issue a writ of habeas corpus.”

134. Although Mr Potier failed on the facts, and his Honour said at [48] that there was no binding or even persuasive authority supporting the proposition that a writ of habeas corpus could be based on a claim of “intolerable conditions”, I am not persuaded on the materials before this Court that all aspects of the claim’s prospects were so poor that the proceedings ought to be regarded as instituted without reasonable grounds in accordance with s 6(c) of the Vexatious Proceedings Act. In particular, the evidence adduced in support by Mr Potier was not before this Court.

134. Ultimately my conclusion in relation to [2014] NSWSC 1271 makes no difference. Whether all nine of the most recent proceedings commenced by Mr Potier were not vexatious, or only eight of the nine were not vexatious, it is plainly a situation which is very different from that confronting the primary judge. Her Honour was faced with materials demonstrating a flurry of vexatious proceedings in the previous two or three years.

135. Conscious as I am of the fact that Mr Potier requires leave to institute civil proceedings to which the Felons Act applies, I would not make any additional order under the Vexatious Proceedings Act in relation to future proceedings. The best evidence of whether such an order should be made is Mr Potier’s most recent litigious history. In circumstances where the moving party accepts that the overwhelming majority of proceedings recently instituted by Mr Potier are not vexatious, and where there is already a partial requirement for leave, I do not consider that the discretion under the Vexatious Proceedings Act should be exercised in respect of instituting new proceedings, so as to impose an additional substantial burden upon him applicable to all applications, even those which are granted leave under the Felons Act.

136. The primary judge also made an order (order 2) staying existing proceedings save for the pending appeal against conviction. Her Honour said at [221] that:

“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.”

It was not suggested when the appeal was heard that there was any error in her Honour taking that course. Accordingly, the existing order 2 will remain in place. It is probable that that order does not extend to Mr Potier’s pending application for an inquiry under Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW). The primary judge held that it did, in her second judgment Attorney General in and for the State of New South Wales v Potier (No 2) [2015] NSWSC 238 at [44]-[45], on the basis that the application was a “matter” within the meaning of s 4(a) of the Vexatious Proceedings Act, and thus a “proceeding” for the purposes of that Act. With that I respectfully disagree. Mr Potier’s application is not a “matter ... within the jurisdiction of any court or tribunal” within the meaning of “proceedings” because the judge determining it is not exercising judicial power and no appeal lies from him or her, although his or her decision may be reviewed judicially. As much is established by what was said in Sinkovich v Attorney General of New South Wales [2013] NSWCA 383; 85 NSWLR 783 at [12]-[13], to which her Honour did not refer and appears not to have been taken. I agree with what Basten JA has written in relation to the operation of the Vexatious Proceedings Act on applications under Pt 7, including that it is unnecessary to determine whether s 4(c) of the definitions applied, and that the safer course is to exclude it expressly.

138. I also agree with the remainder of Basten JA’s judgment under the heading “Approach to formulating orders”, save only that in relation to writs of habeas corpus, I incline to the view that s 71(2) and (3) of the Supreme Court Act exclude this writ from the operation of the Vexatious Proceedings Act. Because the question was not fully argued, and is unnecessary to determine for the purposes of this appeal, I do not need to decide whether to depart from what I said in Potier v State of New South Wales [2014] NSWCA 359 at [15].

Conclusion and orders

139. For those reasons, I have concluded that order 1 made by the primary judge should be set aside, and no order under the Vexatious Proceedings Act should be made in its place. No orders were sought as to costs. Accordingly, I propose the following formal orders:

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.”

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Amendments

04 December 2015 - [65] - "institute" and "conduct" replaced by "instituted" and "conducted"

[90] - "neither be" replaced by "be neither"

[101] - "and limited" inserted into quote

[135] - typographical error corrected

Decision last updated: 04 December 2015