Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Potier v State of New South Wales [2014] NSWCA 359 Hearing dates: 7 October 2014 Decision date: 23 October 2014 Before: Leeming JA Decision: Summons dismissed. [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 - summary dismissal - appellate proceedings commenced by person subject to order under Vexatious Proceedings Act 2008 (NSW) - whether Act applied - whether Act was waived by reason of hearing at first instance - whether Act applied to application for writ of habeas corpus - proceedings dismissed Legislation Cited: Felons (Civil Proceedings) Act 1981 (NSW), s 4 Judiciary Act 1903 (Cth), s 78B Supreme Court Act 1970 (NSW), ss 46(1)(b), 71, 101(3) Vexatious Proceedings Act 2008 (NSW), ss 8, 13, 14, 15 Uniform Civil Procedure Rules 2005 (NSW), r 13.4 Cases Cited: Attorney General in and for the State of New South Wales v Potier [2014] NSWSC 118 Attorney-General (NT) v Emmerson [2014] HCA 13; 88 ALJR 522 Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151; 95 FCR 292 Glennan v Commissioner of Taxation [2003] HCA 31; 77 ALJR 1195 Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27; 211 CLR 1 Patsalis v State of New South Wales [2012] NSWCA 307; 81 NSWLR 742 Potier v Attorney General in and for the State of New South Wales [2014] NSWCA 256 Potier v R [2010] NSWCCA 234 Potier v R [2011] NSWCCA 204 Potier v R [2014] NSWCCA 177 Potier v State of New South Wales [2014] NSWSC 1271 Category: Interlocutory applications Parties: Malcolm Huntley Potier (Applicant) State of New South Wales (Respondent) Representation: Counsel: In person (Applicant) Mr C McGorey (Respondent) Solicitors: NSW Crown Solicitor's Office (Respondent) File Number(s): 2014/287981 Decision under appeal Citation: [2014] NSWSC 1271 Date of Decision: 2014-09-18 00:00:00 Before: Garling J File Number(s): 2014/245713 Judgment 1LEEMING JA: By reserved judgment given on 18 September 2014, Mr Malcolm Huntley Potier's application for the issue of a writ of habeas corpus was dismissed: Potier v State of New South Wales [2014] NSWSC 1271. Mr Potier seeks to challenge that decision. The State submits that the proceeding he has instituted must be dismissed because of the operation of the Vexatious Proceedings Act 2008 (NSW) (VP Act). In order to explain why I accept the State's submission, I need first to say something of the background to the proceedings and the making of the order under the VP Act. 2A highly abbreviated summary of the background is as follows. Mr Potier was tried and convicted of two counts of solicit to murder in 2002. His appeal to the Court of Criminal Appeal, and his application for special leave to appeal to the High Court, were dismissed. That sentence has been wholly served. However, while in custody, Mr Potier was charged with a third count of solicit to murder. He was convicted of this offence in 2006, and sentenced to 12 years imprisonment, with a non-parole period of 7 years commencing 7 August 2006. His appeal against conviction is set down for hearing in November 2014. Bail was refused by a reserved decision given in 2010: Potier v R [2010] NSWCCA 234. Mr Potier unsuccessfully sought review of that decision: Potier v R [2011] NSWCCA 204. More recently Mr Potier applied for bail, again, but without success, from the Court of Criminal Appeal: Potier v R [2014] NSWCCA 177. 3In short, at present, there is an order of the District Court requiring his imprisonment. The order is subject to appeal to the Court of Criminal Appeal, and the non-parole period specified in it has expired. Nonetheless, that presently remains the order which deprives Mr Potier of his liberty. 4Before the primary judge, Mr Potier accepted that his confinement in custody had originally been lawful, but contended that it had become unlawful: Potier v State of New South Wales [2014] NSWSC 1271 at [27]. His submission was that his detention had become unlawful either because of inappropriate conditions, or because of the failure to grant him parole following the conclusion of the non-parole period. The primary judge rejected those submissions, and concluded at [88]: "Mr Potier's detention in custody is entirely lawful, and there is no basis for this Court to issue a Writ of Habeas Corpus." 5On 1 October 2014, Mr Potier filed a summons seeking "leave, if leave be required, to commence proceedings under the Felons (Civil Proceedings) Act 1981 and the Vexatious Proceedings Act" challenging the dismissal of his application for a writ of habeas corpus. Ordinarily, leave is not required to bring an appeal from a "judgment given or order made on an application for a writ of habeas corpus": see Supreme Court Act 1970 (NSW), s 101(3). However, as Mr Potier's summons seeking leave recognises, two more recent statutes at least arguably qualify what would otherwise be his right of appeal. The first arises because he is presently serving a sentence of imprisonment for a serious indictable offence, and is therefore subject to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW). The second arises because on 25 February 2014, orders were made pursuant to s 8(7) of the VP Act prohibiting him from instituting proceedings in New South Wales subject to certain exceptions: Attorney General in and for the State of New South Wales v Potier [2014] NSWSC 118. 6It was because of the operation of the latter statute, and in particular its mandatory language staying and dismissing proceedings purportedly commenced in contravention of it, that this matter was listed before me. The State appeared, and submitted that the VP Act applied and the proceedings should be dismissed. Mr Potier sought, and obtained, an opportunity to make written submissions in reply. He did so by submissions dated 20 October 2014. 7Mr Potier seeks to challenge the orders made under the VP Act, and there has been a referral to a barrister on the pro bono panel for legal assistance in respect of that challenge: see Potier v Attorney General in and for the State of New South Wales [2014] NSWCA 256, but at present, the order remains in force. 8It is common ground that in the proceedings at first instance no point was taken based on the VP Act, notwithstanding that Mr Potier squarely drew that fact to the attention of the primary judge. He maintains therefore that the State has waived its right to rely on the VP Act. I do not agree. 9Section 13 of the VP Act does not confer a right upon a party which the party may choose to waive. Instead, s 13(1) prohibits a person from instituting proceedings without leave. Section 13(2) provides that the proceedings are stayed until they are dismissed (or taken to be dismissed) under this section. Section 13(3) provides that such proceedings are "taken to be dismissed by the court or tribunal in which they were instituted on the expiry of the period of 28 days after the proceedings were first instituted, unless the proceedings are sooner dismissed under subsection (4)." Those provisions operate of their own force. Indeed, the regime established by the Act is that ordinarily a defendant will not be served with proceedings commenced by a person in respect of whom an order has been made until a Court has first granted leave. Although that has not happened in the present case, all this points against Mr Potier's submission that the right is one which can be waived. 10Secondly, Mr Potier submits that his appeal from the dismissal of his application for habeas corpus falls within an exception carved out from the orders made against him under the VP Act. Although his written submissions described the exception broadly, as "any proceedings [in] relation to his current Conviction Appeal including the grant of Bail", the terms of the orders of the Court are in fact as follows: "(1) That, pursuant to section 8(7)(b) of the Vexatious Proceedings Act, the defendant be prohibited from instituting proceedings in New South Wales except interlocutory proceedings in his appeal proceedings pending in the New South Wales Court of Criminal Appeal numbered 2005/14700 (including any bail application). (2) That, pursuant to section 8(7)(a) of the Vexatious Proceedings Act, any proceedings already instituted by the defendant in New South Wales except his appeal proceedings pending in the New South Wales Court of Criminal Appeal numbered 2005/14700 and any interlocutory proceedings in that appeal be stayed." 11The exception is confined to "interlocutory proceedings in [Mr Potier's] appeal proceedings". In her Honour's reasons at [219], her Honour referred expressly to an application for bail. At [220], her Honour further explained the purpose of the carve out: "I do not know what other kind of interlocutory proceedings in connection with or incidental to his appeal against conviction might be pursued by Mr Potier. I am not persuaded that it is appropriate to prohibit the institution of any such proceedings by the mechanism of a vexatious proceedings order. Any interlocutory proceedings in connection with his appeal against conviction, which is currently pending in the Court of Criminal Appeal, should more properly be managed by that Court, rather than seeing the appeal process truncated and probably delayed by the interposition of a requirement to obtain leave under the Vexatious Proceedings Act from a judge of the Court sitting in this Division." 12Neither the terms of the exception, not its rationale, extend to fresh proceedings, in the original jurisdiction of this Court, seeking habeas corpus. Indeed, there is an additional reason to think that applications for habeas corpus are not excluded from the orders made by her Honour. In her reasons, her Honour referred to the applications for habeas corpus made to three judges of this Court, and to the High Court, at [148]-[163] and [189]-[190]. Her Honour found that the first two were not, but the latter two were, "vexatious proceedings" within the meaning of the VP Act. 13For completeness, it may be added that Mr Potier has already exercised his right to apply for bail before the Court of Criminal Appeal, envisaged by the exception: Potier v R [2014] NSWCCA 177. 14Thirdly, Mr Potier submits that habeas corpus is such a fundamental right that the VP Act does not apply to the proceedings in which it is sought. He says that, consistently with this, s 101(3) of the Supreme Court Act excludes what would otherwise be the requirement to obtain leave in the event of an appeal. He submits that: "Habeas Corpus is so fundamental and of overwhelming importance that it would be of the utmost seriousness if any inhibition be imposed on him, or any other persons in similar circumstances in the future, be placed in his way to invoke his right to be heard free from any restriction." 15I accept what Mr Potier says about the fundamental importance of habeas corpus. However, I do not accept his submission that it displaces the operation of the VP Act. Common law rights, even ones which are "fundamental", can be and often are qualified or abrogated by legislation. In such cases, special rules of statutory construction apply. As six Justices of the High Court said earlier this year in Attorney-General (NT) v Emmerson [2014] HCA 13; 88 ALJR 522 at [86]: "legislation affecting fundamental rights must be clear and unambiguous, and any ambiguity must be resolved in favour of the protection of those fundamental rights." 16One example of legislation expressly qualifying the right to apply for habeas corpus is s 71 of the Supreme Court Act, which prevents making a second application on the same grounds, unless fresh evidence is adduced. That section is plainly valid. 17The VP Act is expressed in terms of utmost generality. It applies to the institution of proceedings, which in s 4 are defined to include: "(a) any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and (b) any proceedings (including any interlocutory proceedings) taken in connection with or incidental to proceedings pending before a court or tribunal, and (c) any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way." 18Similarly, s 5 defines "institute" in terms of the utmost generality. 19In Patsalis v State of New South Wales [2012] NSWCA 307; 81 NSWLR 742, Basten JA, with whom Allsop P and Sackville AJA agreed, said, obiter, in the context of a submission that a legislative fetter upon the important civil right to approach a court should be construed narrowly, that: "A statutory regime where there has been a conscious attempt to be comprehensive in terms of the proceedings for which leave is required may be seen in the Vexatious Proceedings Act 2008 (NSW), ss 4 and 5." 20I respectfully agree. The language of ss 4 and 5 is clear and unambiguous. Neither the words nor the underlying purpose leave any scope for excluding applications for writs of habeas corpus from their operation. 21Fourthly, Mr Potier submitted that the VP Act is "flawed as a point of law" because of the obligation in s 14(3)(b) to list "all other proceedings the applicant has instituted in Australia". He said in written submissions: "The Applicant points out that the Act is New South Wales State Legislation. Any Orders made under the Act only apply to matters to be raised in the State Courts; they do not have any authority in other jurisdictions. For example the Family Court - considering matters under Commonwealth Law has its own provisions for declaring a person a 'vexatious litigant'. There is no requirement to obtain Leave to bring matters before the High Court of Australia under this Act as again the Court is outside the restrictions of State Law." 22Orally, Mr Potier had submitted that the VP Act was unconstitutional insofar as it applied by reference to proceedings commenced in courts other than State courts: "I don't believe the Act has the authority to overreach to other States and other jurisdictions and therefore I believe that the Act as a point of law [is] flawed to that extent." 23There is nothing in this submission. I do not need to, and do not, express any view on the operation of the VP Act to an application for special leave to appeal in the High Court of Australia. There is ample legislative power for the State Legislature to enact legislation authorising the making of an order whose effect will be to qualify the commencement of proceedings in this Court by reference to proceedings commenced in courts other than New South Wales courts: see for example Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27; 211 CLR 1 at [16] and [48]. Although ultimately, on one view, Mr Potier's submission amounts to a matter arising under the Constitution, there is no obligation to issue notices in accordance with s 78B of the Judiciary Act 1903 (Cth). No disrespect is intended, but the assertion of a hopeless point, even if characterised as constitutional, does not attract the operation of s 78B: Glennan v Commissioner of Taxation [2003] HCA 31; 77 ALJR 1195 at [14]; Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151; 95 FCR 292 at [23]. 24For those reasons, I do not accept any of Mr Potier's submissions concerning the non-application of the VP Act. 25In the present case, it is plain (and Mr Potier candidly conceded) that there has been no attempt to comply with the mandatory obligations under s 14 in seeking a grant of leave. Section 15 requires an application made under s 14 for leave to institute proceedings to be dismissed if the affidavit required by s 14(3) does not substantially comply with that subsection. 26It follows that either there is a non-compliant application for leave under s 14, which must be dismissed by reason of s 15, or alternatively, there is an application commencing proceedings contrary to s 13(1), on the (incorrect) assumption that the VP Act does not apply. 27In either case the position is clear: the proceedings must be dismissed. The power to do so is, in my view, supplied by s 46(1)(b) of the Supreme Court Act, read with r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW): proceedings commenced contrary to the VP Act are themselves vexatious. Against the possibility that I be wrong about that (as to which I heard no argument), I note that the operation of s 13(3) of the VP Act means that the summons will be, in any event, taken to have been dismissed on 29 October 2014. ********** 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: 23 October 2014