Re Application of Malcolm Huntley Potier

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Court of Appeal

New South Wales
Case Title: Application of Malcolm Huntley Potier
Medium Neutral Citation: [2012] NSWCA 222
Hearing Date(s): 12 July 2012
Decision Date: 25 July 2012
Jurisdiction:
Before: Allsop ACJ at [1];
Basten JA at [1]
Decision:

(1) In respect of each of the four proceedings, the applicant be granted leave to appear in person.

(2) In respect of each of the four proceedings the subject of the orders refusing leave to commence proceedings made by RS Hulme J on 9 March 2010, refuse leave to appeal.

[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:

LAWYERS - tort - advocates' immunity - basis for immunity in finality of judicial determination - allegations against Legal Aid Commission in relation to provision of funding - allegations against plaintiff's legal representatives in relation to conduct of trial - whether open to plaintiff to show that impugned conduct had adverse effect on outcome of proceedings - discussion of D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1

LAWYERS - tort - role of prosecutor - alleged breach of duty to disclose relevant material to defence and to do nothing that would obstruct the administration of justice - whether breaches of duty give rise to liability in negligence 

PRISONERS - civil proceedings - leave to commence proceedings - whether court required to form broad impression as to prospects of success - whether different expressions of standard of prospects of success significant - Felons (Civil Proceedings) Act 1981 (NSW), ss 4 and 5

PROCEDURE - application for leave to commence civil proceedings - "prima facie ground" - Felons (Civil Proceedings) Act 1981 (NSW), ss 4 and 5

WORDS & PHRASES - "prima facie ground"
Legislation Cited: Correctional Centres Act 1952 (NSW), s 46
Crimes (Administration of Sentences) Act 1999 (NSW), s 263
Crown Proceedings Act 1988 (NSW)
Felons (Civil Proceedings) Act 1981 (NSW), ss 4, 5, 6, 7
Law Reform (Vicarious Liability) Act 1983 (NSW), ss 8, 10
Legal Aid Commission Act 1979 (NSW), s 12, 27, 30
Uniform Civil Procedure Rules 2005 (NSW), rr 51.8, 51.9, 51.10; Pt 51
Cases Cited: A v State of New South Wales [2007] HCA 10; 230 CLR 500
Burrell v The Queen [2008] HCA 34; 238 CLR 218
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1
Dugan v Mirror Newspapers Ltd [1978] HCA 54; 142 CLR 583
Ford v Simes [2009] NSWCA 351
Jol v State of New South Wales (1998) 45 NSWLR 283
Nudd v The Queen [2006] HCA 9; 80 ALJR 614
Potier v Arnott [2012] NSWCA 5
Potier v R [2010]…
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Details
Case
[2012] NSWCA 222
Decision Date

CaseChat Overview and Summary

The applicant, Mr Malcolm Huntley Potier, who is in custody, sought leave to appeal a decision of RS Hulme J of the Supreme Court of New South Wales. RS Hulme J had refused Mr Potier leave to commence four separate civil proceedings: one against the Legal Aid Commission of New South Wales, another against Mr David Arnott SC, the Director of Public Prosecutions and the Attorney General, a third against his trial representatives, McGowan Lawyers and Mr Terrence Healey, and a fourth against the Commissioner of Corrective Services. Mr Potier was required to obtain leave to commence civil proceedings under section 4 of the *Felons (Civil Proceedings) Act 1981* (NSW), with leave only to be granted if the court was satisfied that the proposed proceeding was not an abuse of process and had a "prima facie ground" under section 5 of the Act.

The primary legal issues before the Court of Appeal were whether Mr Potier should be granted leave to appeal the refusal of leave to commence these proceedings, and whether the original refusal of leave to commence the proceedings was correct. This involved considering the applicant's applications for an extension of time to seek leave to appeal, which had been granted by Handley AJA, and then assessing the merits of the proposed claims themselves. The claims against the Legal Aid Commission and his trial representatives raised questions concerning advocates' immunity and the potential for a plaintiff to demonstrate that impugned conduct adversely affected the outcome of proceedings, referencing *D'Orta-Ekenaike v Victoria Legal Aid*. The claims against the Director of Public Prosecutions and the Attorney General involved allegations of breaches of duty by a prosecutor, including failure to disclose material and obstruction of justice.

The Court of Appeal, comprising Allsop ACJ and Basten JA, considered the applications for leave to appeal. While an extension of time had been granted due to Mr Potier's custodial status, the Court was required to determine if there was a prima facie ground for each of the proposed proceedings. The Court noted that Handley AJA had previously described the claims as "hopeless" and lacking any prima facie ground. The Court's reasoning would have involved a detailed examination of each of the four proposed proceedings to ascertain whether they met the threshold for leave to commence under the *Felons (Civil Proceedings) Act 1981* (NSW), particularly in light of the principles of advocates' immunity and prosecutorial duties.

The Court ordered that in respect of each of the four proceedings, the applicant be granted leave to appear in person. However, in respect of each of the four proceedings the subject of the orders refusing leave to commence proceedings made by RS Hulme J on 9 March 2010, the Court refused leave to appeal.

Orders

Orders of the court

(1) In respect of each of the four proceedings, the applicant be granted leave to appear in person.

(2) In respect of each of the four proceedings the subject of the orders refusing leave to commence proceedings made by RS Hulme J on 9 March 2010, refuse leave to appeal.

[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.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT of the COURT delivered by BASTEN JA: The applicant, Mr Potier, is presently in custody serving a sentence having been convicted of a serious indictable offence. He is not entitled to institute civil proceedings in any court except by leave of the court: Felons (Civil Proceedings) Act 1981 (NSW) ("the 1981 Act"), s 4. The Court is not entitled to grant such leave unless satisfied that the proposed proceeding is not an abuse of process and that there is prima facie ground for it: s 5. In November 2008 the applicant sought leave to commence four sets of proceedings by summons issued in the Common Law Division of the Supreme Court. The proposed proceedings were as follows:(a) a claim against the Legal Aid Commission of New South Wales, being matter 16296/2008;(b) a claim against Mr David Arnott SC, the Director of Public Prosecutions and the Attorney General, being matter 16303/2008;(c) a claim against the applicant's trial representatives, McGowan Lawyers and Mr Terrence Healey, barrister, being matter 16305/2008, and(d) a claim against the Commissioner of Corrective Services, being matter 16307/2008. On 9 March 2010, RS Hulme J refused the applicant leave to bring each of the proposed proceedings: Potier v Arnott [2010] NSWSC 144. A person refused leave to commence proceedings may appeal against the refusal "as if the decision to refuse the leave were a decision on a point of law": s 6(1). Leave is required with respect to the appeal: s 6(2). The language of s 6(1) is obscure, but need not be considered further in this case. Pursuant to the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"), Pt 51, an application for leave to appeal is to be filed and served within 28 days of the date of the judgment from which the appeal is brought, unless a notice of intention to seek to leave to appeal is filed and served within that time, in which case the time for filing a summons seeking leave is extended to three months: rr 51.8, 51.9 and 51.10. The applicant failed to comply with those time constraints and accordingly sought an extension of time within which to seek leave to appeal and also sought a direction for referral for pro bono legal assistance in this Court. Those applications came before Handley AJA who granted the extension of time but refused a direction for pro bono legal assistance: Potier v Arnott [2012] NSWCA 5. In respect of the extension of time, Handley AJA stated at [2]:"The delay, which was caused by the restrictions on Mr Potier's liberty, has been explained and there is no conceivable prejudice to the respondents. This procedural difficulty will be cured by extending the time for filing the summons for leave to appeal to 29 April 2010." In refusing directions for pro bono legal assistance, Handley AJA considered in respect of each proceeding whether he was able to discern any merit in the claims. He described the various claims as "hopeless" (at [14]), "a waste of the relevant barrister's time" (at [15] and [22]), and lacking any prima facie ground (at [32], [41] and [43]). Those conclusions might have resulted in a refusal of the application for an extension of time. However, time having been extended, it is necessary for this Court to consider the applications for leave to appeal in respect of each proceeding.

Ratio Decidendi

Legal Principle Established

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