Citation: Potier v Magistrate Moore & Anor [2004] NSWSC 1131
Court: Supreme Court of New South Wales, Common Law Division
Date: 25 November 2004
Judge(s): Simpson J
Background
The plaintiff, a self-represented prisoner, had been convicted in October 2001 on two counts of soliciting to murder under s 26 of the Crimes Act 1900. Following a successful Crown appeal in 2004, his effective sentence was increased to eight years and eight months with a non-parole period expiring in August 2006.
In September 2004, the plaintiff made a bail application in the Central Local Court. He was dissatisfied with the conduct of the proceedings before Magistrate Moore and sought an order of certiorari in the Supreme Court, arguing that the Magistrate had denied him procedural fairness during the bail hearing.
The Director of Public Prosecutions appeared conditionally as second defendant and challenged the court's jurisdiction to deal with the summons at the outset. The Magistrate filed a submitting appearance.
Legal Issues
- Whether the plaintiff, as a convicted felon in custody, was entitled to institute civil proceedings in the Supreme Court without first obtaining leave under s 4 of the Felons (Civil Proceedings) Act 1981
- Whether, if leave were required, it should be granted under s 5 of that Act
- Whether the proceedings would in any event constitute an abuse of process
- Whether the Magistrate had denied the plaintiff procedural fairness in the bail hearing
Decision
Simpson J addressed jurisdiction first. Section 4 of the Felons (Civil Proceedings) Act 1981 prohibits a person in custody following conviction of a serious indictable offence from instituting any civil proceedings in any court without the court's leave. Soliciting to murder carries a maximum of 25 years imprisonment and qualifies as a serious indictable offence under the Interpretation Act 1987. The plaintiff was therefore squarely within the section's reach.
The plaintiff argued that he had previously brought proceedings in the Supreme Court without the Felons Act being raised. Simpson J rejected this reasoning, noting that earlier defendants had either overlooked or chosen not to raise the point, and that their omission could not bind a subsequent defendant. The Court of Appeal had itself flagged the Felons Act requirement in an earlier proceeding involving the same plaintiff. Because the plaintiff declined to apply for leave and the proceedings had been commenced without it, the summons was a nullity and the court had no jurisdiction to hear it.
Her Honour nonetheless considered whether leave would have been granted had it been sought. Under s 5, leave may only be granted if the proceedings are not an abuse of process and there is a prima facie ground for them. Simpson J concluded that the proceedings would have been an abuse of process because the substantive challenge to the bail decision lacked any proper basis on the material before the court. On that footing, leave would have been refused in any event.
The procedural fairness complaint was examined but found to be without merit. Her Honour was not satisfied that the Magistrate had acted unfairly in the conduct of the bail hearing.
Orders Made
- The plaintiff's summons was dismissed.
Key Takeaways
- Under s 4 of the Felons (Civil Proceedings) Act 1981, a person in custody following conviction of a serious indictable offence cannot institute any civil proceedings in any court without first obtaining the court's leave; proceedings commenced without that leave are a nullity.
- Where earlier defendants failed to raise the Felons Act point in prior proceedings involving the same plaintiff, that omission did not bind subsequent defendants or constitute any judicial ruling that the Act was inapplicable.
- Section 5 of the Felons Act requires the court to be satisfied both that the proposed proceedings are not an abuse of process and that there is a prima facie ground for them before leave can be granted.
- In dismissing the summons, the court confirmed that a jurisdictional bar under the Felons Act operates independently of whether Registry staff accept the initiating documents for filing.
- Certiorari is not available to challenge a bail decision where the substantive complaint of procedural unfairness is unsupported by the material before the court.
Legislation and Cases Referenced
Legislation:
- Felons (Civil Proceedings) Act 1981 (NSW), ss 4, 5
- Crimes Act 1900 (NSW), s 26
- Bail Act 1978 (NSW), ss 9, 30AA, 32(1)
- Evidence Act 1995 (NSW), ss 97, 98
- Interpretation Act 1987 (NSW)
- Local Court (Criminal and Applications Procedure) Rule 2003
Cases:
- Regina v Potier [2004] NSWCCA 136
- Potier v District Court of NSW [2004] NSWCA 303
- Potier v DPP [2001] NSWSC 514; 123 A Crim R 176
- Potier v Magistrate Huber [2004] NSWSC 720
- Potier v Magistrate Maughan [2004] NSWSC 590