POTIER v ARNOTT & ORS

FILE NUMBER(S) : SC 16303/2008; 16305/2008; 163007/2008; 16296/2008

Mr M Potier (in person) COUNSEL : Mr S Finnane (2 & 3 Defendants) Mr J Gaudan (4 Defendant)

SOLICITORS : IV Knight Crown Solicitor McGowan Lawyers

• 10 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

16303/2008 16305/2008 16307/2008 16296/2008

MALCOLM HUNTLEY POTIER -v- DAVID ARNOTT S.C. MALCOLM HUNTLEY POTIER -v- MCGOWAN LAWYERS MALCOLM HUNTLEY POTIER -v- THE COMMISSIONER, DEPARTMENT OF CORRECTIVE SERVICES, NSW MALCOLM HUNTLEY POTIER -v- LEGAL AID COMMISSION OF NSW

JUDGMENT 1 RS HULME J: These are a further set of reasons arising out of an attempt by Malcom Potier to commence four sets of proceedings in this Court. Mr Potier is presently serving terms of imprisonment and accordingly he suffers the restrictions imposed by the provisions of the Felons (Civil Proceedings) Act 1981. 2 On 6 August 2009 I published Reasons in response to a request from Mr Potier that I ask the Registry to request pro bono assistance for him. In the course of those Reasons, I detailed at length the claims which Mr Potier sought to make against the Defendants in the proceedings and it is unnecessary for me to repeat that information here. These Reasons should be regarded as incorporating what I earlier said. 3 I should also record that, in support of his applications, Mr Potier has forwarded voluminous documentation including "affidavits", submissions and correspondence to the Court. I have read it all but I do not regard it as necessary to refer specifically to many of the contentions raised.

Proceedings 16296/2008 4 The gravamen of Mr Potier's complaint in these proceedings is that on a number of occasions the Legal Aid Commission declined to provide to Mr Potier funding for the engagement of Counsel and/or Solicitors and for the obtaining of evidence concerning certain telephone calls and that this failure by the Commission to carry out its "statutory obligations to fund the Plaintiff in his legal matters" has led to the Plaintiff being convicted and imprisoned. 5 (In that reference to "evidence concerning certain telephone calls" and any other similar references in these reasons I intend to encompass evidence of the making or absence of such calls, records relating to such matters and evidence, including expert evidence, about evidence of these matters.) 6 Provision of legal aid by the Commission is governed by the Legal Aid Commission Act, 1979. The Act provides, inter alia, that:- (i) The principal function of the Commission is provide legal aid and other legal services. In the exercise of this function it may determine the persons in respect of whom legal aid may be granted and determine priorities in the provision of legal aid as between different persons - s10; (ii) In respect of the provision of aid, the Commission shall ensure that legal aid is provided in the most effective, efficient and economical manner - s12; (iii) That, subject to certain determinations as to terms and conditions applicable, legal aid should be provided - s30; (iii) That any grant of legal aid may be varied or terminated - s38; and (iv) That the Commission may delegate the exercise of (most of) its functions - s69. 7 Section 27(1) of the Legal Aid Commission Act provides:- (1) An act or omission of: (a) the Commission, the Chief Executive Officer or a member of staff of the Commission, or (b) the Board or a member of the Board, or (c) a committee established under this Act or a member of such a committee, or (d) a person acting under the direction of a person or body referred to in paragraph (a), (b) or (c), does not subject the Commission, the Chief Executive Officer, a member of staff, a member of the Board, a member of the committee or a person so acting to any action, liability, claim or demand if the act or omission was done, or omitted to be done, in good faith for the purpose of executing this Act. (2) No liability attaches to or is incurred by the Commission, the Chief Executive Officer, a member of staff of the Commission, a member of the Board, a member of a committee established under this act or a person acting under the direction of any of them because of anything done, or omitted to be done, by a private legal practitioner to whom work is assigned under this Act. 8 The effect of this provision is that no liability attaches to or is incurred by the Commission for the actions of its staff members in declining to provide the legal aid that is the subject of Mr Potier's complaints providing those actions were done in good faith. 9 In submissions in reply provided to the Court and dated 14 December last Mr Potier argued that the Commission's treated him "unfairly" and therefore it acted in bad faith. However, there is a clear distinction between the two concepts. Although I do not seek to be definitive unfairness, which may be interpreted as injustice on an equitable situation looks to the result of actions (or inactions). On the other hand, bad faith rather looks to matters of motivation or the subjective attitude of a person acting. Unfairness in result may certainly raise a question as to the motivation of a decision maker but may also simply be the result of a decision reached with the best will in the world. Bad faith does not necessarily follow from the fact a result may be unfair. Furthermore, in circumstances where, as is notorious, the demand for legal aid outstrips the available funds, all applicants cannot be funded as they would wish. Mr Potier received some funding. For all I know, to have provided him with more would have meant that another person missed out entirely. It cannot be said that, merely because Mr Potier did not receive the funding he sought, and which may be conceded to have been important to him, he was treated unfairly. 10 Picking up a reference to Tectran Corporation v Legal Aid Commission & Rajski (1986) 7 NSWLR 340 that was contained in the submissions made on behalf of the Legal Aid Commission, Mr Potier also submitted "that the immunity of 'bad faith' is not absolute and subject to judicial review". In that case Mahoney J remarked that there is in the relevant legislation nothing that deprives someone affected by an act of the Commission of his ordinary right to seek (judicial) review of such an act. However, judicial review is a procedure entirely different from a claim for damages which is what Mr Potier seeks to pursue and I do not find in Mahoney JA's remarks anything to qualify the apparent operation of s27 in barring Mr Potier's claim against the Commission. 11 I should add that, apart from the matters upon which I have so far relied, there is a requirement in s5 of the Felons (Civil Proceedings) Act a prohibition on a court giving leave to institute proceedings unless the court is satisfied that there is prima facie ground for the proceedings. In circumstances where I have no evidence of any conduct on the part of the Commission apart from their refusal of legal aid and where there is almost no evidence as to the circumstances of that refusal beyond the situation of Mr Potier's legal proceedings at the time any refusal occurred, I am not satisfied that there is any prima facie ground for the proceedings. 12 Accordingly, I refuse Mr Potier leave to bring against the Legal Aid Commission proceedings upon the basis of the matters referred to in the Summons, Statement of Claim and Statement of Issues marked as filed in the Common Law Division of this Court and given number 16296/2008.

Proceedings 16303/2008 13 As indicated in my earlier Reasons the First Defendant in these proceedings is sued upon the basis he was the prosecutor in Mr Potier's trial in 2001 and is said to have withheld documents. The Second Defendant, the Director of Public Prosecutions, is sought to be sued because he appointed the First Defendant to the role of prosecutor and the Third Defendant, The Attorney General is sued both by virtue of the ultimate responsibility of the First Defendant to the Third Defendant and the Third Defendant's unwillingness to intervene. 14 In D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 a majority of the High Court re-affirmed the principle that an advocate is immune from suit for negligence or otherwise in the conduct of a case in court or for work done out of court which leads to a decision affecting the conduct of the case in court - see at [85-86], [205], [370], [380]. 15 That decision is fatal to Mr Potier's claim against Mr Arnott. 16 So far as the Director of Public Prosecutions is concerned, nothing is alleged with could constitute actionable fault in the Director at the time of Mr Arnott's appointment or subsequently. Any thought that the Director might be vicariously liable for what Mr Arnott did or did not do is answered by the fact of Mr Arnott's immunity. 17 Nor am I able to conceive of any basis upon which the Attorney General would be liable to Mr Potier either vicariously by reason of some fault on the part of Mr Arnott or by reason of the Attorney General's "unwillingness to intervene". A fortiori is the latter proposition so when there is nothing alleged to suggest that at any relevant time the Attorney General knew of any conduct on the part of Mr Arnott which could have occasioned intervention. 18 Certainly Mr Potier has, on 14 March 2008 and it would seem earlier, written to the Attorney General identifying many of his complaints. However, particularly in the circumstances where Mr Potier had an opportunity to raise at least most of his complaints by way of appeal against his conviction and had indeed pursued at least some of these in the Court of Criminal Appeal in Potier v R [2006] NSWCCA 27, I see no basis for concluding that the Attorney General breached a duty owed to Mr Potier to investigate the complaints and intervene in any way in consequence of that investigation. 19 Accordingly, I refuse Mr Potier leave to bring against Mr David Arnott, the Director of Public Prosecutions and the Attorney-General proceedings upon the basis of the matters referred to in the Summons, Statement of Claim and Statement of Issues marked as filed in the Common Law Division of this Court and given number 16303/2008.

Proceedings 16305/2008 20 The Defendant in these proceedings are the solicitors and counsel who appeared for Mr Potier and his complaint against them is in connection with their conduct of one of his cases. Save possibly in relation to the complaint that the Defendants withdrew from the proceedings in which they were appearing for Mr Potier thus, according to Mr Potier, forcing him to represent himself, the decision in D'Orta-Ekenaike v Victoria Legal Aid (2005) (supra) is fatal to this claim also. 21 I have included in that last sentence a qualification because it might be arguable that the major step of withdrawal can be distinguished from the other conduct of advocates which the High Court had in mind in that case. However, in that the, or at least a, foundation of the High Court's decision was the importance of the finality of litigation and that to succeed in a claim even based on the withdrawal of the Defendants Mr Potier would have to re-litigate the issues in the trial wherein withdrawal occurred, the better view is that D'Orta-Ekenaike v Victoria Legal Aid also precludes this claim from succeeding. 22 Again I would add that, apart from the matters upon which I have so far relied, there is in s5 of the Felons (Civil Proceedings) Act the prohibition on a court giving leave to institute proceedings unless the court is satisfied that there is prima facie ground for the proceedings. In circumstances where I have no detail of the circumstances leading to the withdrawal of the Defendants, I am not satisfied that there is any prima facie ground for the proceedings so far as that complaint is concerned. There is certainly in statements by Mr Potier and remarks of the Court of Criminal Appeal in Potier v R [2006] NSWCCA 27 more information as to the evidence of phone conversations and recordings but whether that would be enough to constitute a prima facie ground within s5 is not something, having regard to what I have said concerning the impact of D'Orta-Ekenaike v Victoria Legal Aid, that it is necessary for me to decide. 23 (I note, though there has been no occasion for me to rely on it that the withdrawal of the Defendants seems to have been at least part of Mr Potier's complaint to the Court of Criminal Appeal in Potier v R [2006] NSWCCA 300.) 24 Accordingly, I refuse Mr Potier leave to bring against McGowan Lawyers (or the members of that firm) and Mr T Healey proceedings upon the basis of the matters referred to in the Summons, Statement of Claim and Statement of Issues marked as filed in the Common Law Division of this Court and given number 16305/2008.

Proceedings 16307/2008 25 The Defendant in these proceedings is the Commissioner of Corrective Services. 26 The remarks of the Court of Appeal in Smith v Commissioner Corrective Services (1978) 1 NSWLR 377 at 326-7 make it clear that there are remedies available to accused persons, and convicted persons seeking to appeal, at least in circumstances where they are being significantly impeded in the exercise of their rights to defend or to appeal. However, it is also clear that these remedies do not reflect civil rights against others, including prison authorities - see at p327. Other authorities make clear that the administration and management (and discipline) of prisoners, at least in the absence of bad faith or improper purposes, are matters for the Commissioner and those under him rather than for the courts - see Nicopoulos v Commissioner for Corrective Services (2004) 148 A Crim R 74 at 106-109 and the cases therein referred to. In light of these authorities, I am satisfied that Mr Potier cannot succeed in his claim for damages. Furthermore, in light of the matters pleaded the claim for "any other relief that the court may be fit to grant" is also not a claim which would entitle Mr Potier to succeed in the proceedings. 27 It follows that the proceedings against the Commissioner are an abuse of process. Accordingly, I refuse Mr Potier leave to bring against the Commissioner, Department of Corrective Services proceedings upon the basis of the matters referred to in the Summons, Statement of Claim and Statement of Issues marked as filed in the Common Law Division of this Court and given number 16307/2008. 28 Lest anything I have said may attempt Mr Potier to seek to commence other proceedings inspired by what he claims to have been inappropriate conduct by persons acting on behalf of the prosecution at the time of his trial in respect of evidence of the telephone recordings I should add this. Mr Potier's complaints, or at least the courts' understanding of them were considered by the Court of Criminal Appeal in Potier v R [2006] NSWCCA 27 and R v Potier (unreported Johnson J,3 March 2005). While Mr Potier may wish to say that the four Judges involved in those decisions all misunderstood his complaint, when one has regard to the requirement in Section 5 of the Felons (Civil Proceedings) Act, 1981 that the court be satisfied that there is prima facie ground for the proceeding, Mr Potier should realise clear identification of the matters upon which he relies is required and, quite possibly, at least some evidence of them extending beyond mere assertion, or even verified assertion, by him. 29 Secondly, whatever problems Mr Potier may have had at an earlier time in obtaining access to typing facilities to prepare documents for an application for special leave to the High Court, more recent documents apparently from him have been in a typed format. Although obviously the passage of time makes his task harder, he is not necessarily precluded from seeking to pursue a special leave application in the High Court.

Orders 30 The orders that seem to me appropriate are:-

(i) I refuse Mr Potier leave to bring against Mr David Arnott, the Director of Public Prosecutions and the Attorney-General proceedings upon the basis of the matters referred to in the Summons, Statement of Claim and Statement of Issues marked as filed in the Common Law Division of this Court and given number 16303/2008

(ii) I refuse Mr Potier leave to bring against McGowan Lawyers (or the members of that firm) and Mr T Healey proceedings upon the basis of the matters referred to in the Summons, Statement of Claim and Statement of Issues marked as filed in the Common Law Division of this Court and given number 16305/2008.

(iii) I refuse Mr Potier leave to bring against the Commissioner, Department of Corrective Services, proceedings upon the basis of the matters referred to in the Summons, Statement of Claim and Statement of Issues marked as filed in the Common Law Division of this Court and given number 16307/2008.

(iv) I refuse Mr Potier leave to bring against the Legal Aid Commission proceedings upon the basis of the matters referred to in the Summons, Statement of Claim and Statement of Issues marked as filed in the Common Law Division of this Court and given number 16296/2008.

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