Potier v Attorney General (NSW)

In *Potier v Attorney General (NSW)*, the New South Wales Court of Appeal considered an appeal concerning vexatious proceedings orders made against the appellant, who was also subject to the *Felons (Civil Proceedings) Act 1981* (NSW). The Attorney General sought to have the appellant declared a vexatious litigant.

The primary legal issues before the Court of Appeal were whether a person subject to the *Felons (Civil Proceedings) Act* could be subject to vexatious proceedings orders, and whether an application for leave under the *Felons Act* could itself require leave under the *Vexatious Proceedings Act 2008* (NSW). The Court also considered the appropriate formulation of vexatious proceedings orders, including the need for temporal limits, proper scope, and the effect on the defence of criminal proceedings, particularly in light of the appellant being in custody for a serious indictable offence.

The Court engaged in statutory interpretation to reconcile the operation of the *Vexatious Proceedings Act* and the *Felons (Civil Proceedings) Act*, aiming to avoid circularity and give effect to both legislative regimes. The Court held that the *Vexatious Proceedings Act* applied to persons in custody for serious indictable offences, and that the requirement for leave under that Act was not circumvented by the *Felons Act*. The Court also determined that "blanket" vexatious proceedings orders were not desirable, and that such orders should be carefully formulated to consider their temporal scope and impact on ongoing criminal proceedings.

The Court of Appeal allowed the appeal in part, setting aside one of the original orders and varying another to clarify that it included applications under Part 7 of the *Crimes (Appeal and Review) Act 2001* (NSW). The Court granted leave to appeal and, to the extent necessary, leave to proceed under the *Felons Act*.