Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Potier v Attorney General in and for the State of New South Wales [2014] NSWCA 256 Hearing dates: 21 July 2014 Decision date: 21 July 2014 Before: Leeming JA Decision: 1. Refer Mr Potier to the Registrar for referral to a barrister on the pro bono panel for legal assistance, that legal assistance at least in the first instance to be confined to the applications for leave to proceed in respect of his challenge to the orders made by the primary judge on 25 February 2014, noting that the application for leave is to be determined separately from and prior to the hearing of any appeal. 2. Vacate the directions hearing before the Registrar that is scheduled at 3pm today. The matter will be re-listed before the Registrar on a date to be fixed by him following his application to the pro bono panel. [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 - pro bono referral - novel questions of statutory construction of general application - referral ordered Legislation Cited: Felons (Civil Proceedings) Act 1981 (NSW), s 4 Supreme Court Act 1970 (NSW), s 101 Uniform Civil Procedure Rules 2005 (NSW), r 7.36 Vexatious Proceedings Act 2008 (NSW), ss 8, 9 Cases Cited: Klewer v Attorney General in and for the State of New South Wales [2010] NSWCA 219 M v Director General, Department of Family and Community Services [2013] NSWCA 118 Margan v NSW Director of Public Prosecutions [2013] NSWCA 196 Martin v Attorney General for the State of New South Wales [2014] NSWCA 189 Patsalis v State of New South Wales [2012] NSWCA 307; 81 NSWLR 742 Viavattene v Attorney General of New South Wales [2014] NSWCA 218 Category: Interlocutory applications Parties: Malcolm Huntley Potier (Applicant) Attorney General in and for the State of New South Wales (Respondent) Representation: Counsel: In person (Applicant) D Galbraith (Respondent) Solicitors: NSW Crown Solicitor (Respondent) File Number(s): 2014/176546 2014/105524 Decision under appeal Citation: [2014] NSWSC 118 Date of Decision: 2014-02-25 00:00:00 Before: McCallum J File Number(s): 2011/344959 Judgment 1LEEMING JA: On 25 February 2014 an order was made declaring that the present applicant, Mr Malcolm Huntley Potier, was prohibited from instituting proceedings in New South Wales subject to some exceptions and that any proceedings already instituted by him, subject to certain exceptions, were stayed. Those orders were made pursuant to s 8(7) of the Vexatious Proceedings Act 2008 (NSW): see [2014] NSWSC 118. Mr Potier has filed a series of applications for leave to appeal from those orders. 2Those applications give rise to some questions as to the grant of leave. One is whether leave under the Vexatious Proceedings Act is required in order to challenge those orders. Without determining that question, there are authorities to suggest that leave is not required: see Viavattene v Attorney General of New South Wales [2014] NSWCA 218 at [2] and Klewer v Attorney General in and for the State of New South Wales [2010] NSWCA 219 at [24]-[27]. 3A second is whether leave is required under s 101(2) of the Supreme Court Act 1970 (NSW), having regard to the reasoning, inter alia, in Viavattene at [2] and the availability of applications under s 9 of the Vexatious Proceedings Act. 4Moreover, there is a third question, which, so far as the materials before me disclose, has not previously been addressed by the Court. That is the interrelationship between the Vexatious Proceedings Act and the Felons (Civil Proceedings) Act 1981 (NSW), which on its face imposes an obligation to obtain leave to commence "any civil proceedings" if, as is the case for Mr Potier, he has been convicted of a serious indictable offence and is in custody: s 4. That said, the operation of the Felons (Civil Proceedings) Act 1981 is far from being free from complexity: see in particular the reasons of Basten JA in Patsalis v State of New South Wales [2012] NSWCA 307; 81 NSWLR 742, especially at [55]-[57]. 5Those three issues are questions of statutory construction. It may be that there are additional issues that arise on the hearing of the application for leave. Some issues in relation to the interrelationship between the State as the moving party and the Vexatious Proceedings Act were considered in Martin v Attorney General for the State of New South Wales [2014] NSWCA 189 at [14]-[19]. 6The foregoing, without being exhaustive, is sufficient to indicate that there are important questions of law, in relation to an important civil right, which transcend the particular facts of this application, and which, so far as I am aware, have not previously been determined by this Court. In those circumstances I have reached the view that this is an appropriate case for a referral pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW). I need to have regard to the fact that Mr Potier had, so I have been told, the benefit of pro bono assistance for the hearing before the primary judge, pursuant to which orders under the Vexatious Proceedings Act were made. That imposes a threshold condition upon my making a referral: see r 7.36(2A); in short I must be satisfied that there are "special reasons" that justify a further referral. The considerations that inform the decision to refer a matter are considered in M v Director General, Department of Family and Community Services [2013] NSWCA 118 at [18]-[22] and Margan v NSW Director of Public Prosecutions [2013] NSWCA 196. In particular, the Court is to be conscious of the fact that the voluntary services of the profession should not be imposed upon where the application lacks merit or for other reasons a referral would be futile. 7In my view, the general importance of the questions of construction to which I have referred, the fact that it seems likely that the Court hearing the application for leave would materially be assisted by written and oral submissions on those questions, and the fact that the provision of that assistance would not need unduly to involve the participation of Mr Potier (who as I said is in custody, presently in Junee) lead me to conclude that there are special reasons within the meaning of r 7.36(2A). 8Accordingly, in accordance with paragraph 2 of the notice of motion dated 8 July 2014, I refer Mr Potier to the Registrar for referral to a barrister on the pro bono panel for legal assistance, that legal assistance at least in the first instance to be confined to the applications for leave to proceed in respect of his challenge to the orders made by the primary judge on 25 February 2014, noting that the application for leave is to be determined separately from and prior to the hearing of any appeal. ********** 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: 05 August 2014