Potier v Arnott & Ors [2012] NSWCA 5

Potier v Arnott & Ors [2012] NSWCA 5

The time for filing the summons for leave to appeal should be extended as the procedural delay was explained and caused no prejudice. There is no sufficient merit or prima facie case, nor basis for pro bono referral, as all claims against the respondents are either barred by advocates' immunity, lack the necessary proof (bad faith for Legal Aid), or cannot be prosecuted while convictions stand. Directions for pro bono referral are refused. The application for leave is not to be listed until after further submissions if so filed.

Parties
Applicant: Malcolm Huntley Potier; 1st Respondent: David Arnott SC; 2nd Respondent: Director of Public Prosecutions NSW; 3rd Respondent: Attorney-General of NSW; 4th Respondents: McGowans Lawyers, T Healey SC; 5th Respondent: The NSW Department of Corrective Services; 6th Respondent: Legal Aid Commissioner of NSW
Jurisdiction
Australia
Judgment Date
09 February 2012
Procedural Posture
Leave to Appeal Application (civil, Extension of Time) / Interlocutory Determination of Extension of Time and Pro Bono Referral, Pending Full Leave Determination
Outcome
Time for filing summons extended; pro bono referral refused; leave application listing delayed for submissions.
Legal Topics
Leave to Commence Proceedings (felons (civil Proceedings) Act 1981), Extension of Time, Pro Bono Legal Assistance, Prisoner Civil Rights, Legal Aid, Advocate's Immunity, Habeas Corpus Applications, Abuse of Process
Practice and Procedure Civil Proceedings Prison Law Leave to Commence Proceedings (felons (civil Proceedings) Act 1981) Extension of Time Pro Bono Legal Assistance Prisoner Civil Rights Legal Aid +3 more

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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

Procedural Posture

Leave to Appeal Application (civil, Extension of Time) / Interlocutory Determination of Extension of Time and Pro Bono Referral, Pending Full Leave Determination

Legal Issues

  1. 1 Whether the time for filing the summons for leave to appeal should be extended
  2. 2 Whether it is appropriate to refer the applicant for pro bono legal assistance under UCPR 7.36
  3. 3 Whether there is a prima facie case for proposed proceedings under Felons (Civil Proceedings) Act 1981 s 5 against various respondents

Ratio Decidendi

The time for filing the summons for leave to appeal should be extended as the procedural delay was explained and caused no prejudice. There is no sufficient merit or prima facie case, nor basis for pro bono referral, as all claims against the respondents are either barred by advocates' immunity, lack the necessary proof (bad faith for Legal Aid), or cannot be prosecuted while convictions stand. Directions for pro bono referral are refused. The application for leave is not to be listed until after further submissions if so filed.

Court Disposition

Time for filing summons extended; pro bono referral refused; leave application listing delayed for submissions.

Orders

  • Time for filing the summons for leave to appeal is extended to 29 April 2010.
  • Directions for referral for pro bono legal assistance refused.