Re Application of Malcolm Huntley Potier

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.