Citation: Potier v Legal Aid Commission of New South Wales [2011] NSWSC 1066
Court: Supreme Court of New South Wales
Date: 1 September 2011
Judge(s): Johnson J
Background
The plaintiff was a sentenced prisoner serving terms of imprisonment following convictions in 2002 and 2006 for soliciting the murder of his former partner (and her then partner). As a person convicted of serious indictable offences, he required leave under the Felons (Civil Proceedings) Act 1981 before he could commence any civil proceedings.
The plaintiff sought to sue the Legal Aid Commission of New South Wales. His proposed claim sought a mandatory order compelling the Commission to fund all of his current legal aid applications without delay, together with a declaration that the Commission had been unreasonably slow and had not acted in good faith in handling his previous and current applications.
The Commission's legal aid applications in question related to five sets of criminal and civil appeal proceedings. The plaintiff had filed his application for leave by Summons and Notice of Motion on 30 June 2011.
Legal Issues
- Whether the plaintiff had demonstrated a prima facie ground for the proposed proceedings, as required by s 5 of the Felons (Civil Proceedings) Act 1981
- Whether the proposed proceedings constituted an abuse of process under the same provision
- Whether the Commission's handling of the plaintiff's legal aid applications disclosed an arguable case of bad faith or unreasonable delay sufficient to justify prerogative or declaratory relief
Decision
Johnson J identified the applicable test under s 5 of the Felons (Civil Proceedings) Act 1981: leave cannot be granted unless the court is satisfied both that the proceedings are not an abuse of process and that there is a prima facie ground for them. Consistent with Ford v Simes [2009] NSWCA 351, his Honour adopted a relatively low threshold, treating "prima facie ground" as meaning no more than an arguable or not totally hopeless case.
His Honour examined each of the five sets of proceedings in relation to which the plaintiff had outstanding legal aid applications or appeals to the Legal Aid Review Committee. In each instance, the evidence did not support the serious allegation that the Commission had acted in bad faith or with unreasonable delay. Johnson J noted a significant gap between the plaintiff's subjective belief that slowness equated to bad faith, and an objective assessment of the evidence before the court.
The court also acknowledged the Commission's role, as described by the Court of Criminal Appeal in Attorney General for New South Wales v Milat (1995), as the body responsible for allocating necessarily limited resources in accordance with its statutory duties and priorities. The plaintiff's grievances about past conduct were treated as being of limited assistance, with the court declining to act as a form of ombudsman for accumulated complaints.
Having found no prima facie ground for the proceedings, Johnson J declined to express a concluded view on whether they also constituted an abuse of process, noting only that it was "an open question at best" for the plaintiff. Because both requirements in s 5 must be satisfied, the absence of a prima facie ground was sufficient to refuse leave.
Orders Made
- The plaintiff's application for leave under the Felons (Civil Proceedings) Act 1981 to commence the proceedings identified in the Notice of Motion filed 30 June 2011 was refused.
Key Takeaways
- Under s 5 of the Felons (Civil Proceedings) Act 1981, both requirements must be satisfied before leave is granted: the proceedings must not be an abuse of process, and there must be a prima facie ground for them. Failure to establish either hurdle is independently fatal to a leave application.
- The threshold for "prima facie ground" is relatively low, requiring only that the case be arguable or not totally hopeless, as confirmed in Ford v Simes [2009] NSWCA 351. Even so, a bare assertion of bad faith against a statutory body requires some objective evidentiary foundation.
- Alleging that a statutory body acted in bad faith is a serious matter. The court will not treat a plaintiff's subjective belief that slowness equates to bad faith as sufficient to establish an arguable case without objective supporting evidence.
- The Legal Aid Commission's responsibility to allocate limited resources according to its statutory duties and priorities is a relevant consideration when assessing claims of unreasonable delay or improper conduct in the handling of legal aid applications.
- In refusing leave, the Supreme Court did not act as a supervisory tribunal for general grievances about the Commission's conduct over time. The focus remained on current controversies with practical utility, not accumulated historical complaints.
Legislation and Cases Referenced
Legislation:
- Felons (Civil Proceedings) Act 1981 (NSW), ss 4, 5
- Legal Aid Commission Act 1979 (NSW), ss 10-12, 33, 34, 53, 54, 56, 59
Cases:
- Attorney General for New South Wales v Milat (1995) 37 NSWLR 370 (Court of Criminal Appeal)
- Ford v Simes [2009] NSWCA 351
- SW v State of New South Wales [2010] NSWSC 966
- Jol v State of New South Wales (1998) 45 NSWLR 283
- Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256
- Potier v Arnott and Ors [2010] NSWSC 144
- Potier v R [2006] NSWCCA 27
- R v Potier [2004] NSWCCA 136