Potier v Legal Aid Commission of New South Wales

Supreme Court of NSW|2011-09-01|Before: Johnson J, Mr J, Gleeson CJ, Kirby P, Mahoney JA

Judgment 1JOHNSON J: The Plaintiff, Malcolm Huntley Potier, seeks leave under the Felons (Civil Proceedings) Act 1981 to commence proceedings against the Defendant, the Legal Aid Commission of New South Wales.

The Plaintiff's Claim 2By Summons and Notice of Motion filed on 30 June 2011, the Plaintiff seeks that grant of leave. 3The Notice of Motion filed 30 June 2011 identifies the orders which the Plaintiff seeks, and sheds light upon the nature of the civil proceedings which he seeks leave to institute. 4In the Notice of Motion, the Plaintiff seeks the following orders: "(1) That leave be granted, if leave be required, for the Plaintiff to commence the said proceedings under any applicable legislation, including the Felons (Civil Proceedings) Act 1981. (2) That the Defendant be required to fund, adequately, all of the Plaintiff's current legal aid applications without delay. (3) That the Defendant has been unreasonably slow, and not acted in good faith, in dealing with the Plaintiff's previous and current applications for assistance under the Legal Aid Act NSW. (4) Any other orders that the Court shall see fit to grant." 5The relief being sought, as to which leave is required, is a claim effectively for prerogative relief and (perhaps) declaratory relief against the Defendant. In effect, the Plaintiff asserts an entitlement to a type of mandatory order that he be provided, without delay, with legal aid funding (order (2)) and, by way of order (3), a form of declaration that the Defendant has been unreasonably slow and not acted in good faith in dealing with his previous and current applications for assistance. 6I approach the matter upon the basis that the claim in order (3) is said to be foundational to the order sought in order (2).

The Statutory Functions of the Defendant 7The Defendant is a statutory body operating under the Legal Aid Commission Act 1979 . The Commission has certain statutory powers and discretions to determine whether legal aid should be granted to an applicant. The powers and discretions with respect to a primary application for legal aid are referred to in, amongst other provisions, ss.33 and 34 Legal Aid Commission Act 1979 . 8In Attorney General for New South Wales v Milat (1995) 37 NSWLR 370, the Court of Criminal Appeal (Gleeson CJ, Kirby P and Mahoney JA) observed (at 374) that the Commission is charged with the responsibility of allocating necessarily limited resources in accordance with its statutory duties and the priorities which the Commission establishes from time to time (cf ss.10-12 Legal Aid Commission Act 1979 ). 9In addition to the power of the Commission itself to determine whether to grant or refuse an application for legal aid, there is a separate statutory avenue, in the event that legal aid is refused or an applicant is dissatisfied with conditions placed on the grant of legal aid, by way of appeal to the Legal Aid Review Committee. 10The Legal Aid Review Committee is a statutory body created separately under ss.53 and 54 Legal Aid Commission Act 1979 . The Legal Aid Review Committee exercises separate statutory powers under ss.56 and 59 of that Act in determining whether, on appeal, a grant of legal aid should be made. 11Thus, there are two separate avenues within the Legal Aid Commission Act 1979 for assessment of an initial application for legal aid, and for appeal to a separate and independent body against a decision made with respect to the initial application. 12I approach the Plaintiff's application for leave upon the basis that the Defendant exercises the statutory powers and functions to which I have referred briefly, in the broad context described by the Court of Criminal Appeal in Attorney General for New outh Wales v Milat .

The Felons (Civil Proceedings) Act 1981 13The Plaintiff is in custody as a result of a conviction in 2002 for soliciting the murder of his former partner and her then partner, and of his conviction in 2006 for again soliciting the murder of his former partner. He is presently serving sentences of imprisonment as a result of those convictions. 14As a result, the Plaintiff is a person who falls within the provisions of the Felons (Civil Proceedings) Act 1981 and thus leave is required under s.4 of that Act for him to commence the present civil proceedings. 15Section 5 of the Felons (Civil Proceedings) Act 1981 provides: "A court shall not, under section 4, grant leave to a person to institute proceedings unless the court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings." 16The construction and operation of the Felons (Civil Proceedings) Act 1981 have been considered in a number of decisions of the Court, including SW v State of New South Wales [2010] NSWSC 966 at [12]-[16], [112]-[114] and [133]-[136]. Put shortly, the purpose of the Act is to enable the Court to supervise proceedings by ensuring that they do not go forward to trial if they amount to an abuse of process or there is no prima facie ground for them: Jol v State of New South Wales (1998) 45 NSWLR 283 at 290. 17As a matter of policy, the statutory gateway to be applied by the Court ought not be an overly demanding one: SW v State of New South Wales at [16]. In Ford v Simes [2009] NSWCA 351, it was said (at [30]-[31]) that the expression "prima facie ground" in s.5 meant no more than a basis that was arguable or not totally hopeless. 18I approach the present application upon the basis of considering whether the Plaintiff has an arguable case, not a totally hopeless case, with respect to the proceedings which he seeks leave to institute. They are, as I have said, a claim for prerogative and declaratory relief concerning the exercise of statutory powers and functions under the Legal Aid Commission Act 1979 with respect to the Plaintiff's applications for legal assistance. 19Section 5 Felons (Civil Proceedings) Act 1981 also requires the Court to consider whether the proceedings are an abuse of process. In SW v State of New South Wales , at [112], a number of authorities were gathered with respect to the concept of abuse of process and its various meanings, which include vexation, oppression and unfairness to the other party to litigation, the fact that a matter complained of may bring the administration of justice into disrepute, and improper purpose. There is no closed category of circumstances that can constitute an abuse of process: Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 at 262 [1], 265 [9]. Those that I have mentioned represent recognised examples of an abuse of process.

The Present Application 20The question then is whether the Court should grant leave for the Plaintiff to institute these proceedings, having regard to the statutory test to be applied on the application and the nature of the proceedings which he seeks leave to institute. 21A number of affidavits have been read on the application and documents have been provided to explain the nature of the Plaintiff's proposed case, if leave is granted. 22It is necessary for the Court to determine the present leave application by reference to current controversies concerning the Plaintiff's legal aid applications. 23The fact that the Plaintiff may have grievances about what has happened in the past is, in my view, of limited assistance. The Court is not sitting as a type of Ombudsman to receive complaints and grievances by the Plaintiff about the approach that may have been taken over the years to his legal aid applications. The Court is considering whether leave ought to be granted to the Plaintiff for the purpose of civil proceedings which he seeks leave to commence, in which he seeks an order that he be provided with legal aid. 24That said, it is clear on the evidence that the Plaintiff has made a number of legal aid applications flowing from the criminal proceedings against him and associated proceedings. It would seem, on the material before the Court, that a number of these applications have moved at varying speeds over the years in their consideration by the Defendant. 25I bear in mind, that what the Plaintiff is asserting is that he has a prima facie case that the Defendant has been unreasonably slow and has not acted in good faith. An assertion that a statutory body has not acted in good faith is a serious allegation. I bear in mind the serious nature of the allegation in considering the present application.

The Five Applications for Legal Aid 26I move now to the five current proceedings in relation to which the Plaintiff has legal aid applications on foot. It is necessary for the Court to focus upon the current legal aid applications or appeals to the Legal Aid Review Committee, because the Court would not entertain any application for relief by the Plaintiff which has no current utility and practical effect. 27The first set of proceedings are those entitled Potier v Arnott and Ors . In relation to these proceedings, an application was made to the Defendant on 23 February 2011 for legal aid in relation to the Plaintiff's appeal to the Court of Appeal against orders of the Supreme Court ( Potier v Arnott and Ors [2010] NSWSC 144) refusing him leave to bring proceedings against a Crown Prosecutor, the Director Of Public Prosecutions, the Attorney General, a firm of solicitors, the Commissioner of Corrective Services and Legal Aid New South Wales. 28On 17 March 2011, the Plaintiff was refused legal aid because his matter did not satisfy the merit test. He was advised of his right to appeal to the Legal Aid Review Committee. 29On 29 April 2011, the Plaintiff appealed to the Legal Aid Review Committee. On 18 May 2011, the Plaintiff requested the Legal Aid Review Committee to defer its decision until he had an opportunity to provide further information. The Legal Aid Review Committee agreed to that request and deferred its decision. 30At a meeting on 8 June 2011, the Legal Aid Review Committee determined to seek a merit advice from counsel in relation to the Plaintiff's appeal to the Court of Appeal. On 17 June 2011, the matter was referred to counsel for advice. On 18 July 2011, the matter was assigned to a solicitor. 31The Legal Aid Review Committee is awaiting counsel's advice before making a decision on the appeal with respect to the application for legal aid for the appeal to the Court Of Appeal. 32The second matter which is current stems from an application made on 8 April 2011 (there having been an application originally made by the Plaintiff on 31 December 2010) for legal aid in relation to the Plaintiff's appeal against his second (2006) conviction and sentence. 33The evidence before the Court indicates that on 28 June 2011, and prior to making a determination under s.34 Legal Aid Commission Act 1979 , the Defendant assigned the matter to a solicitor to obtain a merit advice from a senior counsel experienced in criminal appeals. The Defendant is awaiting the merit advice from senior counsel. In light of that advice, when received, a decision will be made with respect to the application for legal aid. 34The third current application for legal aid was made on 2 March 2011 with respect to a special leave application to the High Court of Australia concerning the Plaintiff's first (2002) conviction and sentence matter. The Plaintiff has sought special leave to appeal from the decision of the Court of Criminal Appeal on his conviction appeal in Potier v R [2006] NSWCCA 27 (the Court of Criminal Appeal had determined sentence appeals by the Crown and the Plaintiff in R v Potier [2004] NSWCCA 136). 35The evidence indicates that, since the application was made, further material has been provided by the Plaintiff to the Defendant. On 28 June 2011, following consideration of information provided, the Defendant granted the Plaintiff's application for legal aid in respect to his special leave application. The matter has been assigned to a solicitor who is briefing an experienced senior counsel who is to represent the Plaintiff in the special leave application to the High Court, and is to prepare a merit advice. 36The fourth area is an application for legal aid made on 18 July 2011 in respect of the Plaintiff's review of a bail application before the Court of Criminal Appeal. 37By letter dated 19 July 2011, the Defendant advised the Plaintiff that the matter was assigned to a solicitor with an authorisation under s.33 Legal Aid Commission Act 1979 to obtain a merit advice from counsel. 38On 27 July 2011, the Defendant received notification from the solicitor that the advice of senior counsel was that the review of the bail application had no reasonable prospects of success. Following this advice, the Defendant made a determination under s.34 to refuse the application for legal aid on the basis that it did not satisfy the merit test. 39Thereafter, the Plaintiff was notified of this decision and, on 23 August 2011, the Plaintiff lodged an appeal to the Legal Aid Review Committee against the decision refusing him legal aid. 40The fifth and final matter which is presently pertinent is an application dated 17 July 2011 by the Plaintiff seeking legal aid for the purpose of a proposed private prosecution of a Crown Prosecutor. 41On 27 July 2011, the application was refused by the Defendant because the proposed prosecution matter did not satisfy the merit test, and was not a matter for which legal aid was available, legal aid not being available to a person to commence criminal proceedings in the Local Court except for apprehended domestic violence order proceedings. 42The Plaintiff was informed of this decision and, on 23 August 2011, the Plaintiff lodged an appeal to the Legal Aid Review Committee against the decision refusing him legal aid on that matter.

Should Leave to Institute Proceedings be Granted? 43I have recited the five areas where there is current controversy as between the Plaintiff and the Defendant and in some cases, it would seem, the Legal Aid Review Committee, so that an understanding can be obtained of the processes and decisions which the Plaintiff, if granted leave, would have an opportunity to seek to impugn. 44It may be observed from what I have recited that there is a grant of legal aid in the third matter, the High Court special leave application. There is, at present, a decision pending after counsel's advice is provided concerning the first and second applications. With respect to the fourth and fifth applications where legal aid has been refused, there has been a very recent appeal lodged by the Plaintiff to the Legal Aid Review Committee. 45None of this, in my view, provides an arguable case for the prerogative and declaratory relief which the Plaintiff seeks leave to claim. 46It seems clear, from submissions, that the Plaintiff has a very clear belief that things have moved slowly and indeed very slowly. This would seem to equate, in the Plaintiff's mind, with a form of bad faith. 47There is, in my view, a significant gap between the Plaintiff's subjective view and an objective assessment of the evidence before the Court. 48The Plaintiff has referred as well, to comments made by Judges at different times about the process and progress of applications for legal aid by the Plaintiff in some of those proceedings. I do not think that observations of that type can provide any real assistance to this Court today in exercising the function required under the Felons (Civil Proceedings) Act 1981 . It is the evidence before the Court which must be considered, by reference to the statutory test for leave and the nature of the civil proceedings which the Plaintiff seeks to commence. 49It is apparent that there have been a significant number of applications by the Plaintiff for legal aid for different purposes. The Defendant of course, as the Court of Criminal Appeal observed in Attorney General for New South Wales v Milat , is charged with the important responsibility of allocating necessarily limited resources in accordance with its statutory duties and priorities. 50In my view, the Plaintiff has not demonstrated an arguable case so as to satisfy the requirement of prima facie ground for the proceedings under s. 5 Felons (Civil Proceedings) Act 1981 . 51It is not necessary for the Court to determine whether the proposed proceedings are an abuse of process. Both hurdles in s.5 Felons (Civil Proceedings) Act 1981 must be overcome by the Plaintiff if leave is to be granted. In light of the factual and legal issues to which reference has been made, it is, in my view, an open question (at best for the Plaintiff) as to whether the proposed civil proceedings would be an abuse of process. However, I need not express a concluded view on that question because I am not satisfied there is prima facie ground for the proceedings. 52I refuse the Plaintiff's application for leave under the Felons (Civil Proceedings) Act 1981 to commence proceedings identified in the Notice of Motion filed 30 June 2011.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 September 2011

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