Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Potier v General Manager, Dawn De Loas Correctional Centre [2012] NSWCA 352 Hearing dates: 23 October 2012 Decision date: 23 October 2012 Before: Allsop P Decision: Application for extension of time to file and serve a notice of appeal against the decision of the Supreme Court made on 16 March 2012 refused with costs. [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 AND PROCEDURE - extension of time - no arguable error by primary judge - no question of principle - application refused Legislation Cited: Supreme Court Act 1970 (NSW), s 101 Cases Cited: Prisoners A-XX Inclusive v State of New South Wales (1995) 38 NSWLR 622 Category: Interlocutory applications Parties: Malcolm Huntley Potier (Applicant) The General Manager, Dawn De Loas Correctional Centre (Respondent) Representation: M Carr, solicitor (Applicant) A Baril, solicitor (Respondent) Malcolm Carr Solicitor (Applicant) Crown Solicitor (Respondent) File Number(s): 2012/00245887 Decision under appeal Citation: [2012] NSWSC 233 Date of Decision: 2012-03-16 00:00:00 Before: Garling J File Number(s): 2011/404581 Judgment 1ALLSOP P: This is an application for an extension of time for the filing and serving of a notice of appeal in respect of orders made by a judge of the Supreme Court, Garling J, on 16 March 2012 in which his Honour dismissed an application for a writ of habeas corpus. 2Section 101(3) of the Supreme Court Act 1970 (NSW) provides that subsection (2) of s 101 "does not apply to a judgment given or order made on an application for a write of habeas corpus". Thus the matter is being dealt with by way of motion available to be dealt with by a single judge for an extension of time for the filing and serving of a notice of appeal. 3The matter was heard before Garling J on 4 January 2012 as I have said. His Honour recounted the history of the matter from [5]-[16]. Part of the factual background which is essential to understanding the refusal of his Honour to issue a writ was the fact that Mr Potier is in custody following the conviction of two serious offences and, to this point, the failure of his appeals. His current custody is referable to the second of those offences. I will return to that issue in a moment. 4From [17] onwards his Honour set out the legal principles, which are not said in any of the written or other submissions to be inaccurately stated. At [30] his Honour summarised the submissions that were before him. 5His Honour dealt at [31]-[33] with the question of the availability of bail. His Honour did not treat the matter as an application for bail; rather, he treated it, as it was intended to be, as an application for habeas corpus. His Honour's reasons for deciding the way he did in substance commenced at [34]. 6I will not set out or repeat everything that is in his Honour's reasons. At [34] and following there is reference to an application for special leave to the High Court of Australia from the Court of Criminal Appeal. Notwithstanding, if I might put it this way respectfully, the apparent ability of Mr Potier to propound applications in this Court in the last number of years, the application in the High Court has not proceeded. 7I make no other comment than that, but it is relevant to the fact that there is an extant order of a superior court which is a sentence for an offence that explains and legally justifies, until set aside, the custody in which Mr Potier is currently kept. 8His Honour then deals in the following paragraphs with the asserted manifest injustice of further incarceration pending appeals and correctly identifies the facts that the habeas corpus application is in the face of an unset aside order of the Court and that it is a collateral attack on those criminal convictions which are not set aside. 9There are various matters in the written submissions of Mr Potier. Written submissions dated 18 June assert, as was asserted and submitted before Garling J and as is submitted and asserted elsewhere in other submissions, that the proceedings were fatally flawed and that his custody should be viewed as lacking lawful foundation. The difficulty with this submission is, as I have already identified, that there is an extant order of a sentence of a superior court of record that has not been set aside. If there is a flaw in the order, and the application for special leave to appeal to the High Court is successful, and an appeal is successful, then that is the appropriate mechanism for challenging the correctness of an order of the Court of Criminal Appeal. 10In my view none of the submissions, whether those dated 18 June, 28 September or 9 October identifies any coherent basis to deal with the fundamental difficulty that Mr Potier faces in relation to the existing orders for his incarceration. 11It should be noted that the primary judge also examined the question of restricted preparation for the application for special leave and noted at [36] that Mr Potier stated in his written submissions that this "is not a complaint about prison conditions which could be rectified by negotiation; rather a fundamental right to have all matters for release from custody considered by the [Supreme Court]". 12It may be that, now, Mr Potier wishes to make a broader attack on the conditions in which he is held in support of an argument that there is now an unlawful detention. The difficulty with that argument is that it will face the problem of this Court's decision in Prisoners A-XX Inclusive v State of New South Wales (1995) 38 NSWLR 622, in particular at 627 to 633. 13In any event, Garling J appears to have dealt with it in a way that to my eye is not infected with any error. 14The respondent's submissions put the matter on the basis of the time that has passed since March. Ordinarily, in circumstances where someone is incarcerated, questions of time might be viewed somewhat elastically in the interests of justice. In this case I am unpersuaded that there is any legitimate basis to consider that Garling J approached the matter erroneously. 15Before concluding, I need to deal with one issue put by both Mr Potier and Mr Carr, solicitor, who appears for him pro bono today. That is that error was disclosed because the primary judge dealt with the matter in the absence of the Crown. This relates to the form of the order and also may have a relationship to s 101(3) of the Supreme Court Act 1970. 16His Honour effectively employed a procedure whereby he refused to issue the writ. It is not in terms an order nisi procedure but it appears to have been a mechanism of a similar character. 17It is said that his Honour erred legally in not bringing the Crown before him for the Crown to answer the assertions of Mr Potier. It is not clear whether this is a procedural fairness challenge or a challenge of some other character. In my view it has no foundation. 18In circumstances where an applicant for orders is unable to persuade a judge of any basis for the orders it is not necessarily a legal error in dealing with a matter in the absence of the defendant or respondent when that defendant or respondent does not complain of that course being taken. 19There could conceivably be cases where, had the defendant or respondent been alerted to the existence of the application, he, she or it would have come forward with information in favour of the application. This is not one of those occasions and it is unnecessary to consider the limits of that proposition. 20His Honour was entitled to deal with the matter in the absence of the Crown. Of course if he had found that there was a reasonable argument for the possible issue of the writ, his Honour would no doubt have brought the Crown before him to have the matter ventilated before making any order or not making any order. However, his Honour was of the view that there was no basis for the issue of the writ. 21In my view his Honour's reasons disclose no arguable error and for that reason the application for an extension of time is refused. 22The papers that were filed in the Court of Appeal make request for an order for habeas corpus. In discussion with Mr Carr before dealing with the extension of time application, I said that the proper course for any fresh application for habeas corpus was the making of a properly structured application before the duty judge of the Common Law Division of the Supreme Court. 23It is not appropriate to bring an appellate matter by way of application for extension of time before this Court and then simply to ask for habeas corpus as if a judge of appeal should take on the responsibility of a judge of the Common Law Division. For that reason I was not prepared to deal with any fresh application beyond the application for an extension of time. 24If any application is to be made it should be made before the duty judge. If any document has been filed in the Court of Appeal, parties have leave to employ such document in the Common Law Division. Whether an application is heard today by the duty judge or whether it is appropriate for those who have immediate custody of Mr Potier to permit movement from this Court where he has been first brought is not a matter I comment on at all but the duty judge today is Johnson J and he is sitting in Court 10E. 25If the parties need any documents that are in the Court of Appeal file, Johnson J's staff have liberty to access the Court of Appeal file. 26For those reasons the application for an extension of time to file and serve the notice of appeal against the decision of Garling J made on 16 March 2012 is refused with costs. ***** 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: 31 October 2012