Potier v General Manager, Dawn De Loas Correctional Centre

Court of Appeal

New South Wales

Case Title:

Potier v General Manager, Dawn De Loas Correctional Centre

Medium Neutral Citation:

[2012] NSWCA 352

Hearing Date(s):

23 October 2012

Decision Date:

23 October 2012

Jurisdiction:

Before:

Allsop P

Decision:

Application for extension of time to file and serve a notice of appeal against the decision of the Supreme Court made on 16 March 2012 refused with costs.

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

Catchwords:

PRACTICE AND PROCEDURE - extension of time - no arguable error by primary judge - no question of principle - application refused

Legislation Cited:

Supreme Court Act 1970 (NSW), s 101

Cases Cited:

Prisoners A-XX Inclusive v State of New South Wales (1995) 38 NSWLR 622

Texts Cited:

Category:

Interlocutory applications

Parties:

Malcolm Huntley Potier (Applicant)
The General Manager, Dawn De Loas Correctional Centre (Respondent)

Representation

- Counsel:

M Carr, solicitor (Applicant)
A Baril, solicitor (Respondent)

- Solicitors:

Malcolm Carr Solicitor (Applicant)
Crown Solicitor (Respondent)

File number(s):

2012/00245887

Decision Under Appeal

- Court / Tribunal:

- Before:

Garling J

- Date of Decision:

16 March 2012

- Citation:

[2012] NSWSC 233

- Court File Number(s)

2011/404581

Publication Restriction:

JUDGMENT

1. ALLSOP P: This is an application for an extension of time for the filing and serving of a notice of appeal in respect of orders made by a judge of the Supreme Court, Garling J, on 16 March 2012 in which his Honour dismissed an application for a writ of habeas corpus.

2. Section 101(3) of the Supreme Court Act1970 (NSW) provides that subsection (2) of s 101 "does not apply to a judgment given or order made on an application for a write of habeas corpus". Thus the matter is being dealt with by way of motion available to be dealt with by a single judge for an extension of time for the filing and serving of a notice of appeal.

3. The matter was heard before Garling J on 4 January 2012 as I have said. His Honour recounted the history of the matter from [5]-[16]. Part of the factual background which is essential to understanding the refusal of his Honour to issue a writ was the fact that Mr Potier is in custody following the conviction of two serious offences and, to this point, the failure of his appeals. His current custody is referable to the second of those offences. I will return to that issue in a moment.

4. From [17] onwards his Honour set out the legal principles, which are not said in any of the written or other submissions to be inaccurately stated. At [30] his Honour summarised the…