Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Potier v Arnott & Ors [2012] NSWCA 5 Hearing dates: 31 October 2011 Decision date: 09 February 2012 Before: Handley AJA Decision: (1) Time for filing the summons for leave to appeal is extended to 29 April 2010. (2) Directions for referral for pro bono legal assistance refused. (3) The Registrar is directed not to list the application for leave to appeal until at least five weeks after publication of these reasons to give Mr Potier an opportunity to file further submission in support of his leave application. [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: PRACTICE & PROCEDURE - Felons Act 1981 - leave to commence proceedings - Summons for leave to appeal - pro bono legal assistance - application refused Legislation Cited: Correctional Centres Act 1952 Felons (Civil Proceedings) Act 1981 Legal Aid Commission Act 1979 Cases Cited: Arthur J S Hall & Co v Simons [2002] 1 AC 615 Castrique v Behrens (1861) 3 E&E 709 D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12, 223 CLR 1 Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 Flynn v The Queen [1949] HCA 38, 78 CLR 1 Gilding v Eyre (1861) 10 CBNS 592 Hamzy v Commissioner of Corrective Services [2011] NSWSC 120 Potier v General Manager MRRC [2007] NSWSC 1031 Potier v General Manager MRRC [2008] NSWSC 153 Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 CA Smith v Corrective Services Commission [1980] HCA 49, 147 CLR 134 Tectran Corporation Pty Ltd v Legal Aid Commission (1986) 7 NSWLR 340 Texts Cited: Res Judicata (p 12) Category: Principal judgment Parties: Malcolm Huntley Potier - Applicant David Arnott SC - 1st Respondent Director of Public Prosecutions NSW -2nd Respondent Attorney-General of NSW - 3rd Respondent McGowans Lawyers, T Healey SC - 4th Respondents The NSW Department of Corrective Services - 5th Respondent Legal Aid Commissioner of NSW - 6th Respondent Representation: Applicant in Person N/A Applicant in Person Mr FF Salama - McGowan Lawyers, no appearance for other respondents File Number(s): 2008/288581 Decision under appeal Citation: [2010] NSWSC 144 Date of Decision: 2010-03-09 00:00:00 Before: R S Hulme J File Number(s): SC 16303/2008; 16305/2008; 163007/2008; 16292/2008 Judgment 1HANDLEY AJA : On 29 April 2010 Mr Potier applied by summons for leave to appeal out of time from the judgment of R S Hulme J of 9 March 2010: [2010] NSWSC 144. The Judge had refused leave under the Felons (Civil Proceedings) Act 1981 (the 1981 Act) for Mr Potier to bring actions for damages against Mr David Arnott SC, the Director of Public Prosecutions, and the Attorney-General (provisional file No 16303/2008), Mr T Healey SC and McGowan Lawyers (provisional file No 16305/2008), the Commissioner Department of Corrective Services (provisional file No 16307/2008) and the Legal Aid Commission (provisional file No 16296/2008). 2The 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. 3Mr Potier's application for leave to commence proceedings arises from the requirements of s 4 of the 1981 Act which provides: "A person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application." 4Mr Potier was and is affected by s 4 because he is in custody, having been sentenced in August 2006 to 12 years 3 months imprisonment with a minimum term of seven years. 5Section 6(1) of the 1981 Act, which allows a prisoner who has been refused leave under s 4, to appeal to this Court provides: "Subject to subsection (2), a person to whom leave referred to in section 4 has been refused may appeal against the refusal as if the decision to refuse the leave were a decision on a point of law." 6Section 6 (2) provides that the appeal only lies by leave of the Court of Appeal. 7However s 7(a) provides that the prisoner can only appear in person on his application or appeal by leave of the relevant court and s 7(b) provides that putative defendants have no right to appear or be represented. 8In these circumstances Mr Potier has sought a direction from this Court for pro bono legal assistance under UCPR Pt 7 Div 9. 9Rule 7.36(1) enables the Court to refer a litigant to the Registrar "for referral to a barrister ... on the Pro Bono Panel for legal assistance." Subrule (2) enables the Court to take various matters into consideration including (c) "the nature and complexity of the proceedings." 10Since Mr Potier can only appear in person by leave he might be thought a most appropriate recipient of pro bono assistance. However the Court should only invoke these provisions in proper cases lest unfair burdens be placed on practitioners who have volunteered for the Pro Bono Panel. 11The nature and complexity of the proceedings necessarily involves the merits of the appeal under s 6 of the 1981 Act and thus the merits of the proposed proceedings for which leave was sought. Section 5 of the 1981 Act 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." 12The primary Judge refused leave to bring claims for damages against Mr Arnott SC, the Director of Public Prosecutions, and the Attorney-General because D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12, 223 CLR 1 established that an advocate owed no enforceable duty of care to his or her client in and in connection with the conduct of the client's case in court. The proposed case against Mr Arnott faces even greater difficulties because he was prosecuting Mr Potier, not defending him. 13The High Court refused to follow Arthur J S Hall & Co v Simons [2002] 1 AC 615 ( Hall ) where the House of Lords held, by majority, that an advocate may be liable to his or her own client for negligence in the conduct of criminal proceedings. Earlier the Court of Appeal held that advocates and solicitors ordinarily owe no duty of care to a litigant on the other side: Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335. In Hall (above) at pp 679, 724, and 747 three of the Law Lords referred to Elguzouli-Daf with evident approval. 14In my judgment the claim for damages against Mr Arnott is hopeless and the dependent claims against the Director of Public Prosecutions and the Attorney-General cannot be in a better position. 15Although I cannot pre-empt the decision of the Full Court on Mr Potier's application for leave to appeal I will not refer this part of the case to the Registrar for pro bono assistance because to do so would, in my opinion, be a waste of the relevant barrister's time. 16The proposed action against Mr T Healey SC and McGowan Lawyers arises from Mr Potier's second trial in which he was convicted. The sentence he is currently serving was imposed following that conviction. The allegations against Mr Healey, other than that based on his withdrawal from the case during the trial, are contrary to D'Orta-Ekenaike (above) and cannot succeed. 17R S Hulme J noted [21] that "it might be arguable that the major step of withdrawal can be distinguished from other conduct of advocates." Conduct of this nature was not considered in the majority judgments in D'Orta-Ekenaike but an advocate's decision that he could no longer properly represent his client may be part of the "conduct of a case in court": D'Orta-Ekenaike (above) [85]. 18However as the Judge held [21] the decision that the advocate's immunity did not cover withdrawal in the middle of a criminal trial would still confront the majority's reliance in D'Orta-Ekenaike on the principle that controversies, once resolved, are not to be re-opened except in a few narrowly defined circumstances: ibid [34], [45]. 19Any case for damages against Mr Healey and McGowan Lawyers would involve a re-trial of the second criminal trial, on different evidence, and an explicit assertion that the second conviction was a miscarriage of justice. 20Mr Potier has an application for special leave pending from the decision of the Court of Criminal Appeal in his appeal against his first conviction: [2006] NSWCCA 27. Should the High Court allow that appeal it would seem that his second conviction must be set aside because the first conviction was in evidence before the jury in the second trial. 21In Hall [2002] 1 AC 615 the House of Lords held that a criminal conviction could not be impugned in collateral civil proceedings against a barrister or solicitor unless and until it had been set aside. 22In D'Orta-Ekenaike the conviction had been set aside, and the plaintiff had been acquitted on his retrial. Thus even if an appropriate exception to the rule in D'Orta-Ekenaika were to be recognised this further requirement would bar the proposed proceedings against Mr Healey and McGowan Lawyers. Accordingly I will not refer this part of the case to the Registrar for pro bono assistance because to do so would be a waste of the relevant barrister's time. 23The next claim was against the Commissioner of Corrective Services. Mr Potier's written submissions dated 27 November 2008 in support of his application below (WB 244-245) state that following his conviction in the second trial he obtained legal aid for a "merits" advice, and for this purpose had "to review in detail all the material and comprehensively instruct counsel". 24The relevant documents were said to comprise in excess of 60,000 pages and in addition "a substantial amount of critical evidence ... in electronic mediums (sic) such as computer files, CD's and BHS tapes". 25Mr Potier stated: "I immediately advised the servants of the defendant that I would need access and facilities to review the material. This was denied." He said that he was forced to apply for a writ of habeas corpus and he referred to proceedings in the Supreme Court and in this Court. His applications for habeas corpus were refused: Potier v General Manager MRRC [2007] NSWSC 1031, Potier v General Manager MRRC [2008] NSWSC 153. I have been unable to trace any relevant decision of this Court. 26Mr Potier claimed that "there is a long demonstrated history of a disregard of undertakings ... by the defendant's servants to provide access." As a result the special leave application had been delayed at least two years. He also relied on his inability to file an application for special leave because the High Court Rules require such applications to be typed and filing by post is not permitted. The unstated suggestion is that the prison authorities were bound to provide him with access to a typewriter or word processor and to facilitate arrangements for a third party to file the application in the High Court. 27The protective provision in s 46(1) of the Correctional Centres Act 1952 may not apply to omissions and the Judge did not rely upon it. He followed Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 CA, 326-7 and held that conduct of the kind alleged did not give rise to civil rights against others. Whether that decision would be followed today in relation to proceedings for judicial review could be a real question: Smith v Corrective Services Commission [1980] HCA 49, 147 CLR 134, cf Flynn v The Queen [1949] HCA 38, 78 CLR 1, 8 per Dixon J. 28The Judge was satisfied however [26] that Mr Potier could not succeed in a claim for damages against the Commissioner, and the proceedings were an abuse of process. 29Before me Mr Potier relied on his written submissions dated 5 June 2010 (WB 39-40). His only claim was that in his habeas corpus proceedings the Commissioner "gave binding undertakings to those courts to rectify the 'unlawful conditions of imprisonment' as to myself.... despite these repeated undertakings the defendant chose to resile from those undertakings thereby causing me loss" (WB 39). He submitted that a breach of undertaking can give rise to a claim for damages (WB 39). 30The cases Mr Potier cited for the last proposition, to which Hamzy v Commissioner of Corrective Services [2011] NSWSC 120 should be added, were for false imprisonment. 31I have read the reasons for judgment in both of Mr Potier's habeas corpus cases: [2007] NSWSC 1031 and [2008] NSWSC 153. There is no reference in the reasons or in the formal orders to any undertaking given by the defendant to the Court or to Mr Potier. In any event undertakings of that nature, if given, are enforceable by proceedings for contempt of Court, and not by an action for damages. 32There is no evidence that the Commissioner ever gave a binding undertaking to the Court. In the absence of any plausible support for the claim in the reasons for judgment and in view of the legal difficulties, there is no prima facie ground for the proposed proceedings within s 5 of the 1981 Act. In my opinion no good purpose would be served by referring this claim to a barrister for pro bono legal assistance and I decline to give such a direction to the Registrar. 33The remaining claim is against the Legal Aid Commission. During the ex parte hearing on 31 October I said to Mr Potier (T 15): "I will reserve my decision and the only question ... which I could, with a clear conscience, send to the Bar is the question of the Legal Aid funding for the Telstra subpoena." 34Mr Potier has two claims against the Commission. The first is based on its refusal to pay the expenses demanded by Telstra before it complied with a subpoena issued during the first trial on the advice of defence counsel. This required production of records relating to disputed telephone conversations which formed the basis of the Crown case. Defence counsel had been provided at the expense of the Commission and Mr Potier claimed that the Commission was bound by counsel's advice to pay the expenses demanded by Telstra. The Commission, which has a difficult task in apportioning its resources among many deserving applicants, is under no enforceable obligation to fund every expense advised by defence counsel, however justified it may appear in isolation. 35In the result the money demanded by Telstra could not be paid and documents were not produced in answer to the defence subpoena. When this was reported to the trial Judge, he directed the prosecution to obtain those records. Telstra produced them to the prosecution towards the end of the trial, but Mr Potier claims, it seems with some justification, that they were not disclosed to the defence. This conduct forms the basis of Mr Potier's special leave application. 36The Commission's refusal to pay the expenses demanded by Telstra was the cause of the document's not being produced earlier in response to the defence subpoena. However the documents were later produced to the prosecution and could and probably should have been disclosed by it to the defence. The prosecution's failure to do so may fairly be regarded as the supervening cause of their non production, breaking the chain of causation from the funding decision by the Commission. 37The second claim against the Commission is based on the long delay after the dismissal of Mr Potier's appeal against his conviction in the first trial: ([2006] NSWCCA 27. The delays are indeed extraordinary and very troubling, and reveal a sorry state of affairs. However during 2011 funding was finally approved for a merits opinion from a member of the Bar and Mr Potier believes that his special leave application is now being prosecuted with effect. 38Later during the ex parte hearing I referred to possible further evidence that might be available to Mr Potier through the firm of solicitors who acted for him in the first trial which could strengthen his claim against the Commission for refusing to pay the expenses demanded by Telstra. I gave Mr Potier an opportunity to arrange for the solicitors to produce such evidence [219]. The solicitors subsequently did this but the additional material did not take either claim against the Commission any further. 39Section 27(1) of the Legal Aid Commission Act 1979 provides: "(1) An act or omission of: (a) The Commission ... or a member of staff of the Commission, or (b) ..., 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 ... a member of staff, ... a member of the committee or persons 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." 40R S Hulme J said [8] that the effect of s 27 was that no liability attached to or was incurred by the Commission for the action of its staff in declining to provide additional legal aid provided those acts were done in good faith. Although Tectran Corporation Pty Ltd v Legal Aid Commission (1986) 7 NSWLR 340, 346 supports the view that s 27 does not bar proceedings for judicial review, that was not the relief sought in the proposed proceedings. In any event Johnson J refused to grant leave under the 1981 Act for Mr Potier to bring judicial review proceedings against the Commission: [2011] NSWSC 1066. 41R S Hulme J held that there was no evidence of bad faith on the part of the Commission and their refusal of additional legal aid and the long delays were not evidence of bad faith. There was therefore no prima facie ground for the proposed proceedings within s 5 of the 1981 Act. 42There is in truth no evidence of lack of good faith on the part of the Commission and its officers, and no reason to suppose that their acts or omissions were motivated by malice or ill will towards Mr Potier. Negligence and gross delay, even if unexplained, are not evidence of lack of good faith. However the defence may have the onus of proof on this issue and there is no positive evidence of good faith. 43Section 5 of the 1981 Act requires the Court, before granting leave, to be satisfied that there is prima facie ground for the proceedings. While this is not a high barrier, not only is there no evidence of any lack of good faith, it is extremely unlikely that the officers concerned acted otherwise than in good faith and that their evidence to that effect could be effectively challenged or rejected. There is therefore no prima facie ground for the proposed proceedings. 44Mr Potier faces yet another legal hurdle in bringing any such claim. While the first and second conviction stand he cannot prove damage, and cannot allege that either conviction is unjust. This has been the law since Gilding v Eyre (1861) 10 CBNS 592, 604 and Castrique v Behrens (1861) 3 E&E 709, 721. See generally Spencer Bower & Handley Res Judicata 4 th ed 2009 pp 144-5. 45In my opinion therefore no good purpose would be served by referring this claim to a barrister for pro bono assistance and I decline to give such a direction to the Registrar. 46Mr Potier appears to have had advice and assistance from Mr Daniel Brezniak of counsel (T 18). He needs no referral from the Registrar for this purpose and such a referral would not confer any advantage on Mr Potier or Mr Brezniak in relation to advice and assistance provided by the latter. 47The follow orders should be made: (1) Time for filing the summons for leave to appeal is extended to 29 April 2010. (2) Directions for referral for pro bono legal assistance refused. (3) The Registrar is directed not to list the application for leave to appeal until at least five weeks after publication of these reasons to give Mr Potier an opportunity to file further submission in support of his leave application. ********** 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 February 2012