Attorney General in and for the State of New South Wales v Potier

Judgment 1The Attorney General has brought proceedings in which it seeks orders against the defendant, Mr Potier, under the Vexatious Proceedings Act 2008. By motions filed on 14 August 2012, Mr Potier sought the stay of the proceedings, while he pursues various matters. He pressed an adjournment application earlier during the week before the duty judge (see Attorney General in and for the State of New South Wales v Potier (Supreme Court of New South Wales, Harrison J, 20 August 2012, unreported)). Harrison J adjourned that application to be dealt with by the trial judge. It was pressed at the commencement of the hearing. 2Over the Attorney General's opposition, I granted an adjournment and ordered that Mr Potier be referred for pro bono legal assistance in relation to the hearing of the Attorney General's application. These are the reasons for that decision. 3Orders may be made under s 8(1) of the Vexatious Proceedings Act, if the Court is satisfied that: "(a) the person has frequently instituted or conducted vexatious proceedings in Australia, or (b) the person, acting in concert with a person who is subject to a vexatious proceedings order or who is referred to in paragraph (a), has instituted or conducted vexatious proceedings in Australia." 4'Vexatious proceedings' are defined in s 6 as: "(a) proceedings that are an abuse of the process of a court or tribunal, and (b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and (c) proceedings instituted or pursued without reasonable ground, and (d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose." 5The Attorney General's case rests on numerous civil proceedings, as well as applications which Mr Potier has brought in criminal proceedings. Written submissions explaining the case which the Attorney General seeks to advance have been filed. Despite directions earlier given, Mr Potier has not put on submissions or evidence. 6Mr Potier is presently in custody serving two sentences after conviction in 2001 and 2006 of serious indictable offences. He is presently pursuing an application for leave to appeal to the High Court, from a decision of the Court of Criminal Appeal, in respect of his 2001 conviction. There are also proceedings on foot in the Court of Criminal Appeal in relation to the 2006 conviction. 7The Attorney General's application does not seek to restrain Mr Potier's pursuit of his High Court application. It does seek to restrain his pursuit of further interlocutory applications in the Court of Criminal Appeal proceedings, or in any further criminal proceedings which result from the High Court's decision. Mr Potier does not presently have further applications in those proceedings, but he wishes to preserve his rights in that respect. 8His adjournment application was pressed on the basis that in the circumstances prevailing in custody, he is not in a position to adequately represent himself in these proceedings. He relied on affidavits in which he had outlined his difficulties, especially the limitations on his access to legal and computer resources. They were not the subject of challenge. 9The Attorney General opposed any adjournment of the hearing. It submitted that the administrative law application which Mr Potier wished to pursue in relation to the refusal of his applications for legal aid had no prospects of success and that even if referred for pro bono legal assistance, he would not necessarily be provided with such representation. It was also argued that he would not be disadvantaged by the refusal of the application, because he was entitled to a fair hearing, even if not represented; he was already subject to the provisions of the Felons (Civil Proceedings) Act 1981; and that if orders were made against him under the Vexatious Proceedings Act, he was entitled to apply to have them set aside (s 9). That was a right which he could exercise in future, if he obtained representation. Furthermore, the orders sought would not preclude him from pursuing meritorious applications in future, in respect of which he would be granted leave by the Court. 10I came to the conclusion that the adjournment could not be granted, so as to enable Mr Potier to pursue his complaints about the refusal of his legal aid applications, for reasons discussed in Potier v Legal Aid Commission [2011] NSWSC 1066. Mr Potier's subjective views about the Legal Aid Commission's treatment of his applications for legal aid and his appeal from the decisions refusing those applications are not of themselves a basis upon which bad faith on the Commission's part may be established. Nevertheless, I was of the view that he should have a referral for pro bono legal representation and that the hearing should be adjourned, so that the referral could be made. 11I was satisfied that it was in the interests of the administration of justice, that he be referred for legal assistance to a barrister or solicitor on the Court's Pro Bono Panel (see Rule 7.36 of the Uniform Civil Procedure Rules 2005). Contrary to the views reached by Handley AJA in Potier v Arnott [2012] NSWCA 5 at [15], pro bono assistance would not in this case be a waste of the relevant barrister's time. To the contrary, it would be of real assistance to the proper administration of justice. 12The application had to be considered in light of the overriding purpose specified in s 56 of the Civil Procedure Act 2005, the just, quick and cheap resolution of the real issues in the proceedings. The fact that it was the Attorney General who has brought proceedings against Mr Potier while he is in custody and subject to the Felons (Civil Proceedings) Act, had to be weighed in the balance, as did the Attorney General's concession that the application raised novel questions, not previously considered. In the circumstances it appeared that the Attorney General would suffer little prejudice by the grant of the adjournment and that both Mr Potier and the Court would potentially be significantly advantaged, if it was granted. 13Mr Potier is not presently entitled to institute civil proceedings in any court, except by leave, given the provisions of s 4 of the Felons (Civil Proceedings) Act. Under s 5, 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 a prima facie ground for it. It appears that some of the applications on which the Attorney General seeks to rely, are ones in respect of which Mr Potier was granted such leave. 14The operation of this legislation can be seen in the recently given decision of Application of Malcolm Huntley Potier [2012] NSWCA 222, where Mr Potier was refused leave to appeal from the refusal of leave to bring proceedings against: "(a) the Legal Aid Commission of New South Wales; (b) Mr David Arnott SC, the Director of Public Prosecutions and the Attorney General; (c) his trial representatives, McGowan Lawyers and Mr Terrence Healey, barrister, and (d) the Commissioner of Corrective Services." 15The operation of the Felons (Civil Proceedings) Act, at the moment already places considerable restrictions on Mr Potier's rights to institute civil proceedings. The Attorney General's application seeks to further restrict his rights, it was explained, by effectively removing the right which that Act gives him, to appeal any refusal of leave sought and also by altering the impact of the commencement of any proceedings without leave. 16That alone may not have swayed me to grant the adjournment, having in mind the procedural history of the matter, which it is unnecessary to outline. In his decision Harrison J noted, however, that at the heart of Mr Potier's submissions was that to the extent that there was any possibility that his future prosecution of his rights in any criminal matter were to be imperilled by the absence of legal representation on this application, then the Court should grant him the referral and adjournment which he sought. 17Mr Potier urged that it would be accepted that given his circumstances in custody, he is not able to adequately represent himself in these proceedings and that he should have an opportunity to obtain legal representation, given the impact which the orders sought might have upon him, in relation to his convictions. 18As the Attorney General contended, the consequences of any order made against Mr Potier under the Vexatious Proceedings Act, would be to restrict his right to pursue legal proceedings on a wider basis than currently flows from the operation of the Felons (Civil Proceedings) Act. The word 'proceedings' is defined in wide terms in s 4 of the Vexatious Proceedings Act. It is not confined to civil proceedings. If made, the orders sought would continue to operate after Mr Potier is released from custody. While in custody, the orders sought could not only inhibit his existing appeal rights, but could also affect the conduct of future criminal proceedings, which might result from the current application to the High Court. 19Also to be considered was that what will arise for determination is not only the interaction between the two statutory schemes, but also the exercise of the Court's discretions. These are all questions which are not without apparent difficulty. They have not previously arisen for consideration. In the circumstances I was satisfied that given the questions raised by the Attorney General's application, Mr Potier should be referred to the Court's pro bono panel for assistance in respect of the application. That will not guarantee that he will receive the benefit of such representation. If it is not made available to him, the hearing may well have to proceed, with Mr Potier being unrepresented. 20It was for these reasons that I adjourned the hearing to 30 November 2012; directed that the Registrar refer Mr Potier to the pro bono legal panel for advice and representation in relation to the hearing of the Attorney General's application; directed that he serve any evidence and file and serve the submissions on which he seeks to rely by 16 October 2012 and that the matter come into the Registrar's list at 9.30 am on 2 October 2012. 21In the event that Mr Potier does not then have representation, the referral may be cancelled under Rule 7.36(4A) and the hearing will have to proceed with Mr Potier appearing unrepresented.