Potier v Ruddock & MRRC - [2008] NSWSC 153

CITATION: Potier v Ruddock & MRRC [2008] NSWSC 153

HEARING DATE(S): 15/05/06; 17/05/06; 19;05/06; 25/05/06; 01/06/06; 15/03/07; 03/05/07; 01/06/07

JUDGMENT DATE :
3 March 2008

JURISDICTION: Common Law Division

JUDGMENT OF: Hidden J at 1

DECISION: Leave under s4 Felons (Civil Proceedings) Act refused.

CATCHWORDS: PRISONERS: - Habeas Corpus - whether available - conditions of custody - applicant wishing to lodge High Court special leave application - difficulty in complying with High Court rules while in custody

LEGISLATION CITED: Felons (Civil Proceedings) Act 1981 (s5)

CATEGORY: Principal judgment

CASES CITED: Potier v General Manager/Governor MRRC [2007] NSWSC 1031
Prisoners A – XX Inclusive v State of New South Wales (1995) 38 NSWLR 622
Miller v The Queen (1985) 24 DLR (4th) 9
R v Deputy Governor of Parkhurst Prison; ex parte Hague [1992] 1 AC 58
Behrooz v Secretary of Department of Immmigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486, [2004] HCA 36

PARTIES: Malcolm Huntley Potier (applicant)
General Manager, Metropolitan Remand and Reception Centre (respondent)
Philip Ruddock, Commonwealth Attorney General (1st named respondent)

FILE NUMBER(S): SC 11987/2006

COUNSEL: Applicant in Person
S Robson (respondent)

SOLICITORS: Applicant in Person
Crown Solicitor (respondent)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Monday 3 March 2008

2006/11987 Malcolm Huntley Potier v (Philip Ruddock, Commonwealth Attorney General) & the General Manager of the Metropolitan Remand and Reception Centre
JUDGMENT

1 HIDDEN J: This is yet another proceeding instituted by the applicant, Malcolm Huntley Potier, arising from his imprisonment after his conviction of two counts of soliciting to murder. He filed a motion seeking the issue of a writ of habeas corpus, for reasons which I shall explain shortly. He joined as respondents to the motion the honourable Philip Ruddock, Commonwealth Attorney General at the relevant time, and the General Manager of the Metropolitan Remand and Reception Centre, the prison where he was then being held. The joinder of Mr Ruddock was misconceived, he has not been served and the applicant no longer seeks any remedy against him. The active respondent is the general manager of the prison to which I have referred, who has been represented by Mr Robson of counsel.

2 To pursue the application, the applicant requires leave under s 4 of the Felons (Civil Proceedings) Act 1981. Section 5 of that Act provides that a court must not grant such leave unless it is satisfied “that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings …”. In his motion the applicant seeks that leave. The respondent has filed a motion seeking that leave be refused or, alternatively, that the proceedings be summarily dismissed.

3 The issue arises in this way. The applicant’s appeal to the Court of Criminal Appeal against his conviction was dismissed. He has wished to apply for special leave to appeal to the High Court, but has been unable to lodge that application because he cannot comply with High…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Potier v Ruddock & MRRC

Details

AGLC: Potier v Ruddock and MRRC [2008] NSWSC 153
Case: [2008] NSWSC 153
Decision Date: 3 March 2008

CaseChat Overview and Summary

The matter before the court was an application for habeas corpus by the applicant, Potier, against the Minister for Immigration, Regional Cooperation and Pacific, Ruddock, and the Minister for Defence, MRRC, concerning the applicant's detention. The applicant, who was in custody, sought to lodge a special leave application in the High Court but was experiencing difficulty complying with the High Court rules due to his circumstances. The court had to determine whether habeas corpus was an appropriate remedy in these circumstances and whether the applicant's conditions of custody were a sufficient ground for the court to intervene. The central legal issue was whether the applicant's inability to comply with the High Court rules while in custody constituted a sufficient ground for the court to grant habeas corpus and to order his release. The court considered the nature of the remedy of habeas corpus and its availability in the circumstances of this case. The court examined the applicant's conditions of custody and whether they amounted to a violation of his rights. Ultimately, the court held that habeas corpus was not available in these circumstances, as the applicant's inability to comply with the High Court rules while in custody did not constitute a sufficient ground for the court to intervene. The court found that the applicant's conditions of custody did not amount to a violation of his rights and that the remedy of habeas corpus was not an appropriate remedy in these circumstances. The court dismissed the application for habeas corpus and made no orders.

Orders