Potier v Magistrate Moore & Anor [2004] NSWSC 1131

Potier v Magistrate Moore & Anor [2004] NSWSC 1131

The plaintiff was in custody as a result of convictions for serious indictable offences and had not obtained leave under s4 of the Felons (Civil Proceedings) Act 1981, so the purported civil proceedings were a nullity and the Court had no jurisdiction. In any event, leave would have been refused under s5 because the proceedings were an abuse of process and had no prima facie ground: the magistrate was correct not to go behind the plaintiff's existing convictions when determining bail on the further charge.

Jurisdiction
Australia
Judgment Date
25 November 2004
Procedural Posture
Summons Seeking Certiorari and Prerogative Relief Concerning a Local Court Bail Application / Hearing of Summons; Second Defendant Challenged Jurisdiction Under the Felons (civil Proceedings) Act 1981
Outcome
Summons dismissed.
Legal Topics
['procedural Fairness' 'jurisdiction' 'leave to Institute Civil Proceedings by Person Convicted of Serious Indictable Offence' 'abuse of Process' 'certiorari' 'bail Application']
['administrative Law' 'criminal Procedure' 'bail' 'civil Procedure'] ['procedural Fairness' 'jurisdiction' 'leave to Institute Civil Proceedings by Person Convicted of Serious Indictable Offence' 'abuse of Process' 'certiorari' 'bail Application']

Case Brief

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Procedural Posture

Summons Seeking Certiorari and Prerogative Relief Concerning a Local Court Bail Application / Hearing of Summons; Second Defendant Challenged Jurisdiction Under the Felons (civil Proceedings) Act 1981

Legal Issues

  1. 1 ['Whether the plaintiff was precluded by s4 of the Felons (Civil Proceedings) Act 1981 from instituting the summons without leave.' 'Whether leave under s4 of the Felons (Civil Proceedings) Act 1981 would be granted under s5.' "Whether the magistrate denied procedural fairness by refusing to consider arguments going behind the plaintiff's 2001 convictions in determining bail on a further charge." 'Whether the proceedings were an abuse of process and had any prima facie ground.']

Ratio Decidendi

The plaintiff was in custody as a result of convictions for serious indictable offences and had not obtained leave under s4 of the Felons (Civil Proceedings) Act 1981, so the purported civil proceedings were a nullity and the Court had no jurisdiction. In any event, leave would have been refused under s5 because the proceedings were an abuse of process and had no prima facie ground: the magistrate was correct not to go behind the plaintiff's existing convictions when determining bail on the further charge.

Court Disposition

Summons dismissed.

Orders

  • ["The plaintiff's summons is dismissed."]