Applicant v Proposed Respondent

1 The applicant, Mr Julian Knight, is a prisoner at Port Phillip Prison ('PPP'). He is also a very active vexatious litigant. Since 19 October 2004, he has been prohibited by orders of this Court made under statute from commencing a legal proceeding in a Victorian court or tribunal without prior leave.[1] At present, the statute of principal relevance is the Vexatious Proceedings Act 2014 (Vic) ('VPA'). On 17 February 2020, Mr Knight filed in this Court an application under s 54 of the VPA for leave to commence a proceeding in this Court. The application has been styled Knight v Sellman (S ECI 2020/00990) ('Knight v Sellman'). That matter was referred to me for determination. In considering it, I noted that there were six other applications by Mr Knight for leave to commence proceedings currently pending in this Court and that, in one way or another, all of them had connections with Knight v Sellman.

2 It is appropriate for the Court to deal now with four of those six other pending applications for leave to proceed, as well as with the application for leave to proceed in Knight v Sellman, making a total of five applications to be dealt with.[2]

3 As I will explain in due course, each of the five matters falls to be heard and determined 'on the papers', i.e. without an oral hearing before me.[3] The application for leave to proceed in Knight v Sellman has been the subject of detailed affidavits and written submissions from both Mr Knight and the proposed defendant. The four other matters are being dealt with more summarily.

4 The application in Knight v Sellman is, in short, an application for leave to seek orders that PPP give Mr Knight access or greater access to a certain computer and/or certain computer files. To that extent, Knight v Sellman resembles many previous applications to this Court made by Mr Knight, all of which have failed to result in orders for the grant of such access.[4]

5 In Knight v Sellman, Mr Knight has claimed, on some occasions, that he wants or needs access or greater access to the computer in question and/or the computer files in question for the purposes of preparing materials for the six other pending applications that I have mentioned (and for other purposes). On other occasions during the running of Knight v Sellman, Mr Knight has said, in effect, that, for the purposes of that matter, he relies on the existence of only one of the six other pending matters, namely, Knight v The Queen (S ECI 2018/03025).[5] In any event, the other six applications have been put on hold pending the determination of Knight v Sellman. Mr Knight's principal argument in Knight v Sellman is that he has a 'common law right of unimpeded access to the courts' (and an equivalent right under s 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('Charter')); that this 'right' is unlawfully denied to him if the Corrections authorities place any limit on his access to computer facilities and his access to the courts is thereby impeded to any extent; that this has in fact happened; and that, accordingly, he should have leave to commence a proceeding for a mandatory injunction in certain terms against the general manager of PPP. As will be seen, that argument is fundamentally misconceived in several ways. For that reason and for other reasons to be mentioned, Mr Knight's application for leave to proceed in Knight v Sellman must be dismissed.

6 Three of Mr Knight's other pending applications, namely Knight v Adult Parole Board (S CI 2013/02043), Knight v Wilson (Director of the Department of Justice) (S CI 2013/02362) and Knight v Adult Parole Board (S CI 2013/06673), are very old. Indeed, they were commenced in 2013 under the statutory regime that was in place prior to the commencement of the VPA on 31 October 2014.[6] As will be seen, events have long overtaken their subject matter, such that it would now be futile and plainly wrong to allow them to proceed any further. Accordingly, I will dismiss each of them.

7 The fourth of the other pending applications is Knight v Cassar (Corrections Commissioner) (S ECI 2018/03024). Although not as old as the matters from 2013, this matter also falls to be dismissed on the ground of futility and on other grounds, as I will explain.

8 The two other pending matters (apart from Knight v Sellman) are the abovementioned Knight v The Queen (S ECI 2018/03025) and Knight v Assafiri (Acting Deputy General Manager of Port Phillip Prison) (S ECI 2019/03572). Both of those matters have been allocated to Richards J for determination. Accordingly, I will not be determining them. However, as already indicated, both matters have connections with Knight v Sellman, particularly Knight v The Queen. In Knight v The Queen, Mr Knight seeks leave to bring an application for an extension of time to appeal from the convictions (of 1988) which led to his imprisonment. On 4 December 2019, Richards J dismissed an application by Mr Knight in Knight v The Queen for leave to bring an interlocutory application seeking orders for computer access very similar[7] to orders of the kind that, undaunted, he now seeks in Knight v Sellman. In Knight v Assafiri, Mr Knight seeks leave (from Richards J) to bring an application for a declaration that his 'common law right of unimpeded access to the courts' is infringed as a result of certain other alleged action or inaction of the authorities at PPP relating to Mr Knight's legal matters.

9 I turn now to explain in more detail why all five of the applications with which I am dealing must be dismissed.

Past criminal and civil proceedings relating to or brought by Mr Knight and relevant statutory developments

10 On 10 November 1988, Mr Knight pleaded guilty in this Court before Hampel J to seven counts of murder and 46 counts of attempted murder relating to incidents on 9 August 1987 in the vicinity of Hoddle Street, Richmond. He was represented by senior and junior counsel. In his sentencing remarks, Hampel J recounted that Mr Knight was

responsible for one of the worst massacres in Australian history as a result of which seven people died and 19 people were injured. Many more were fortunate to escape death or injury as [Mr Knight] indiscriminately fired over 100 rounds of ammunition, from three weapons, at passing motorists and at the police as they tried to apprehend [him].[8]

Mr Knight was 19 years old at the time of those events.

11 Hampel J sentenced Mr Knight to life imprisonment in respect of each of the seven counts of murder, and to ten years' imprisonment for each of the 46 counts of attempted murder to be served concurrently with each other and with the life sentences. Pursuant to s 17 of the Penalties and Sentences Act 1985 (Vic), Hampel J fixed a minimum term of 27 years. The minimum term (referred to as a 'non-parole period' under the Corrections Act 1986 (Vic)) was due to expire on or about 8 May 2014. However, Mr Knight has not been granted parole. I will return to the matter of parole shortly.

12 During his imprisonment, Mr Knight has commenced or sought to commence a host of legal proceedings, mainly about the conditions of his imprisonment and matters relating to prison administration.[9] The vast majority have been without merit, and, as a result, as indicated above, litigation by Mr Knight has been subject to statutory restraint since 19 October 2004. On that day, Smith J made an order under s 21(2) of the Supreme Court Act 1986 (Vic) (as it then stood) declaring Mr Knight to be a vexatious litigant. The order further provided that, for a period of ten years from the date of the order, Mr Knight was not to commence any legal proceedings in the Supreme Court or in any other court or tribunal without the leave of the Court.[10]

Considering all the proceedings identified above in these reasons, (including his successful ones) a clear picture emerges of a person who is habitually and persistently and without reasonable cause instituting hopeless, and therefore, vexatious proceedings. There is a high probability that he will continue to do so. It is true that a few proceedings had merit, but even in those cases he showed a tendency to pursue the relief sought through the appeal process even though he must have known he had no prospects of success. His conduct generally reveals a strong tendency to pursue hopeless proceedings. There is no evidence to suggest that this might change. It appears to me that an order should be made declaring him vexatious.[11]

14 As Smith J predicted, Mr Knight continued to pursue vexatious litigation. He did so to an even greater extent than before. The records of this Court indicate that, between the time of the decision of Smith J and the present time, Mr Knight has commenced a total of 66 further separate applications to this Court.[12] Many of the applications were pressed to judgment.[13] Lengthy, painstaking judgments have often been required. As the years progressed, and as the expiry date of Mr Knight's minimum non-parole period grew closer, Mr Knight made increasing reference in his complaints, claims and applications to alleged duties on the part of the prison authorities to take measures that would, he claimed, increase the prospects of him being granted parole once he became eligible.[14] Relevantly to Mr Knight's currently pending applications that were filed in 2013, in particular, but also to Knight v Cassar and, indirectly, to Knight v Sellman, the prospects of any grant of parole to Mr Knight were to be fundamentally affected by a statutory amendment in April 2014, as will be seen shortly.

15 On 1 January 2011, the Civil Procedure Act 2010 (Vic) came into operation. Among other things, that Act imposes 'overarching obligations' on persons to further the administration of justice in relation to any civil proceedings in which they are involved.[15] Persons are not to make any claim that is frivolous or vexatious or that is an abuse of process or that does not have a proper basis.[16] There are also overarching obligations to take steps to resolve or determine the dispute,[17] to cooperate with the other parties and the court,[18] to use reasonable endeavours to resolve disputes,[19] to narrow the issues in dispute,[20] to ensure that costs are reasonable and proportionate,[21] and to act promptly and minimise delays.[22] In exercising any power in relation to a civil proceeding, a court may take into account any contravention of the overarching obligations.[23] Under s 63(1), a court may dismiss a civil proceeding if satisfied that the claim in the proceeding has no real prospect of success. Under s 63(2)(c), a court may do so of its own motion if satisfied that it is desirable to summarily dispose of the proceeding.

1. On 2 April 2014, the Corrections Amendment (Parole) Act 2014 (Vic) came into operation, inserting s 74AA into the Corrections Act 1986 (Vic). Section 74AA(3) provides that the Adult Parole Board may make an order for release on parole in respect of 'the prisoner Julian Knight' if, and only if, the Board is satisfied (on the basis of a report prepared by the Secretary to the Department) that he is in imminent danger of dying, or is seriously incapacitated, and as a result he no longer has the physical ability to do harm to any person, that he has demonstrated that he does not pose a risk to the community, and that, because of those circumstances, the making of the order is justified.[24]

17 On 5 September 2014, the Attorney-General applied for an indefinite extension of the effect of the order declaring Mr Knight a vexatious litigant that had been made by Smith J on 19 October 2004.

18 On 16 October 2014, T. Forrest J extended the order of Smith J until the final determination of the Attorney-General's application.

19 On 31 October 2014, as indicated above, the VPA came into operation. By s 91(1) of the Act, an order declaring a person to be a vexatious litigant made under s 21(2) of the Supreme Court Act 1986 (Vic) as in force immediately before the repeal of s 21 of that Act is taken on and from that repeal to be a general litigation restraint order made by the Supreme Court under s 29 of the Act. Section 29 of the VPA empowers the Supreme Court constituted by a Judge of the Court to make a general litigation restraint order against a person if the Court is satisfied that the person has persistently and without reasonable grounds commenced or conducted 'vexatious proceedings' (as defined in s 3 of the Act). More generally, the VPA sets up an elaborate regime designed to control or limit vexatious litigation. A stated purpose of the VPA is to balance individual 'rights' of access to the courts with the public interest in an efficient and effective justice system.[25] Another stated purpose relates to the management and prevention of vexatious behaviour.[26] The policy concerns that underlie the VPA were dealt with in some detail by J. Forrest J in the matter relating to Mr Knight to which I am about to turn. With respect, I endorse everything said by J. Forrest J relating to the policy of the Act. Further, everything said by J. Forrest J about Mr Knight's own litigious behaviour is consistent with the very large amount of material relating to Mr Knight that I have had to consider in dealing with these present matters and previous matters relating to him.[27]

20 On 30 August 2016, J. Forrest J granted the abovementioned application of the Attorney-General and ordered that Mr Knight be the subject of a general litigation restraint order under Part 4 of the Act. J. Forrest J further ordered that Mr Knight must not, without the leave of the court or tribunal in which the proceeding is to be commenced, commence from that date any legal proceedings, whether civil or criminal, in the Supreme Court, an inferior court or any tribunal. The order was expressed to remain in force indefinitely.

21 In his reasons for judgment,[28] J. Forrest J made the following presently relevant observations:

Mr Knight has, since he was declared a vexatious litigant, persistently brought proceedings that were either hopeless or had no reasonable grounds or prospects of success. For the reasons below, I am of the view that the order of Smith J should be extended indefinitely.[29]

...

As to Mr Knight, Professor Mullen[30] said that:

(a) He does not suffer from a 'serious psychiatric disorder' but has a rigid obsessional personality trait.

...

(d) He will continue to complain about his conditions of incarceration (whether justified or not) as long as he is incarcerated.

(e) His obsessional traits extend to stubbornness and a tendency to lose a sense of proportion in pursuing a particular goal.

(f) Mr Knight did tell Professor Mullen that some of the cases he took on were petulant and a way of causing trouble - although, on reflection, the Professor thought that what Mr Knight said was that the trouble he caused gave him some satisfaction.

(g) His personality is such that it makes it more likely that he will persist in any tasks he takes on to a greater extent than the average person.

(h) Given his past behaviour, it was unlikely that Mr Knight would cease or decrease his litigious behaviour.[31]

...

Since October 2004, Mr Knight has made numerous applications to the Court seeking leave to issue proceedings against a variety of defendants. More often than not these applications have been connected with the conditions of his incarceration and complaints about prison administration. The five tables (now annexed to this judgment), provided by the Attorney-General, precis the situation.[32]

Table 1 sets out the fifteen occasions (14 in the trial division and one application for leave to appeal) from October 2006 until March 2013 in which this Court has held that the proceedings, if instituted, would constitute an abuse of process. The words 'hopeless' or 'foredoomed to fail' appear in many of these dismissals of Mr Knight's applications.[33]

Table 2 is marginally different to table 1, but makes the same point. It details eight instances from October 2012 until October 2015 where a court has held that Mr Knight had not discharged the burden of proving that the proposed proceeding, if instituted, would not be an abuse of process. Of these, six were decisions of the trial division, and two of the Court of Appeal.[34]

Table 3 shows three instances, between July 2013 and August 2015, where Mr Knight failed to comply with mandatory requirements of the Act.[35]

Table 4 sets out the five times Mr Knight has filed applications in relation to access to an in-cell computer in prison. All applications were dismissed.[36]

Table 5 notes the ten occasions upon which Mr Knight has been granted leave to commence a proceeding. Of these, Mr Knight was ultimately successful on three occasions (two of which were by consent, and in the third he was successful in part), whilst three were dismissed and the balance not prosecuted.[37]

In summary, since 2004 Mr Knight has made 30 applications for leave to commence proceedings under the SCA and the Act which have been refused by judges of this Court. He has enjoyed mixed success in the proceedings in which leave was granted - three were successful, three were unsuccessful.[38]

Further, more than 20 judicial officers have considered Mr Knight's applications or (where leave was granted) proceedings - a number on multiple occasions.[39]

...

It is not to the point, as Professor Mullen explained, that Mr Knight is not a querulous litigant. The fact is that he is a persistent and undeterred litigant who will continue to litigate any cause regardless of its merit.[40]

Indeed, Professor Mullen said that he has counselled Mr Knight to avoid persistent litigation, but to no avail:

I've said it on a number of occasions, I suspect in this report, is that his pursuit of repeated litigation which brought him into the public eye is inevitably very unwise.[41]

...

So, it follows[42] that the existence of a number of successful applications for leave or judgments does not paint the whole picture. Each application places a strain on the administration of the justice system. Whether under the SCA or the Act, Mr Knight's applications, frequently baseless, take up scarce judicial resources and mean that other non-vexatious litigants are delayed in accessing justice.[43]

The drain of multiple hopeless cases on the resources of the Court was recognised by the Law Reform Committee Inquiry into Vexatious Litigants (whose recommendations led to the legislative changes resulting in the Act), where the following was said (emphasis added):

Public funding for courts and tribunals is not unlimited. Victoria's courts and tribunals are increasingly expected to ensure they use their available resources to administer justice as efficiently and effectively as possible. These concepts are becoming part of the values of the justice system itself. The Government's Justice Statements list effectiveness as a 'core value' of the justice system along with equality before the law, fairness and accessibility.

The VLRC (Victorian Law Reform Commission) listed proportionality - the idea that the costs incurred by the parties and by the public in the provision of court resources should be proportionate to the matter in dispute - as another desirable goal of the civil justice system. Vexatious litigants challenge these values because they consume court and tribunal resources for proceedings that may be unmeritorious and, in doing so, reduce the resources available for other litigants. In a 2006 speech the Master of the Rolls in the United Kingdom (UK) argued that:

If courts are required to utilise their scarce financial and temporal resources on vexatious claims and applications, their ability to properly deal with claims and applications that have genuine merit will be diminished. Such claims may not be heard due to lack of time or resources. If heard, the hearing may be delayed for a lengthy period of time. Equally, if heard, a judgment may then be delayed because the judge has to spend precious time dealing with a vexatious litigant, or with matters that have been referred to him to hear as a consequence of vexatious litigation generally.

This analysis suggests that, by reducing the efficiency of the courts, vexatious litigants affect access to justice for the community as a whole.[44]

...

The prospect of any reduction in Mr Knight's persistent litigious behaviour is nil. In 2004, Smith J arrived at the same conclusion - and his Honour has been proven correct. Notwithstanding that Mr Knight has been declared a vexatious litigant, he has continued to make application after application after application. Many have been recognised by judges of this Court as being 'hopeless' or 'foredoomed to fail'. Others are merely a repetition of a previous application.[45]

Smith J had only a relatively short history to guide him in reaching his conclusion as to Mr Knight's future conduct. Here, the case is stronger. The litigious story is now at least 15 years old and unabated. There is also Professor Mullen's opinion that, in effect, there is no prospect in the future of any reduction in attempts by Mr Knight to litigate any issue on which he takes umbrage.[46]

The end result is that it is patently in the interests of justice to extend the order, declaring Mr Knight to be a vexatious litigant.[47]

I am not deterred from this course by the fact that there have been some successful applications; even fewer court victories. The unnecessary strains placed on the administration of justice by repeated hopeless applications is an overwhelming factor in concluding that the general litigant restraint order should be extended.[48]

...

Given the aims of the Act, specifically the pursuit of an efficient and effective administration of justice (which I have outlined above), and my conclusion that Mr Knight's litigious conduct will persist indefinitely, I consider that it is in the interest of justice that the order should be of an indefinite duration.[49]

To make it clear, such an order does not prevent Mr Knight from seeking leave to commence a proceeding pursuant to Part 8 of the Act.[50]

22 J. Forrest J went on to say[51] that, rather than impose a requirement that any application for leave to commence a proceeding be made to the Supreme Court, he proposed to order (pursuant to s 30 of the Act) that any such application be made in the jurisdiction in which the applicant sought to issue the putative proceeding. His Honour considered that this accorded with common sense and was consistent with the two core values of the justice system - effectiveness and proportionality - that had been outlined by the Law Reform Commission Inquiry into Vexatious Litigants to which his Honour had referred.

23 Since the decision of J. Forrest J of 30 August 2016, and notwithstanding everything said by his Honour (and by Smith J before him), Mr Knight has continued, unreasonably, to vex numerous targets of his complaints and claims, to waste this Court's time and resources with meritless applications, and to diminish access to justice for the community as a whole. Eleven applications by Mr Knight for leave to commence proceedings (including one application for reinstatement of a dismissed application) have been finalised by way of dismissal or discontinuance since 30 August 2016. Then there are the seven applications to which I have referred above, being the applications by Mr Knight that, until now, have remained pending. Those two categories represent 18 of the 66 separate applications made to this Court by Mr Knight since the decision of Smith J of 19 October 2004. In addition, since 30 August 2016, there have been at least four unsuccessful applications for leave to commence interlocutory applications made by Mr Knight within larger applications.[52] Further again, in 2017, Mr Knight made an unsuccessful application to VCAT for leave to bring an application for review of a decision made under the Freedom of Information Act 1982 (Cth).[53]

24 On 17 August 2017, the High Court rejected a constitutional challenge brought by Mr Knight in relation to s 74AA of the Corrections Act 1986 (Vic) (the abovementioned section relating to any grant of parole to Mr Knight), holding that the section was not invalid on the ground of contrariety to Chapter III of the Commonwealth Constitution.

Mr Knight's three leave applications of 2013: assumptions about the applicable statutory provisions

25 I will assume in Mr Knight's favour, without deciding, that, notwithstanding that s 91 of the VPA deems an order made under the former s 21(2) of the Supreme Court Act 1986 (Vic) to be a 'general litigation restraint order' made under the Act, each of Mr Knight's applications of 2013 otherwise falls to be considered and decided by reference to the statutory provisions that applied when they were filed, and under the legal principles that were developed in relation to those provisions. That is to say, I will assume that, on the proper construction of s 14 of the Interpretation of Legislation Act 1984 (Vic) and of the transitional provisions in the (2014) Act itself, the former s 21 of the Supreme Court Act 1986 (Vic) continues to apply to the applications filed in 2013, together with the legal principles that were developed under that section, to the exclusion of the provisions of the (2014) Act that would otherwise be applicable.[54] Accordingly, I will assume that the specific provision in the (2014) Act[55] imposing, as a precondition for a grant of leave under that Act, that the Court be satisfied that 'there are reasonable grounds for the proceeding', does not in terms apply to Mr Knight's applications of 2013. On the other hand, even under the principles that were developed by reference to s 21 of the Supreme Court Act 1986 (Vic) prior to its repeal, leave is not to be given unless the Court is satisfied that the proposed proceeding is not or would not be an abuse of the process of the Court. Generally speaking, a proceeding that is hopeless or doomed to fail is an abuse of process of the Court; the onus of demonstrating that a proposed proceeding would not be an abuse of process lies on the applicant; and, even if the Court is satisfied that the proposed proceeding would not be an abuse of process, any grant of leave is discretionary.[56]

Dealing with applications for leave on the papers; dealing with applications for leave summarily and on the Court's own motion

26 There was nothing specific in the former s 21 of the Supreme Court Act 1986 (Vic) about the procedures to be adopted on an application for leave to proceed under that section.[57] Nor were there any rules of court of specific application. However, a practice in the Supreme Court, and in other courts, of dealing with some matters, especially interlocutory matters, 'on the papers' was followed well before the (2014) Act was enacted.[58] Applications for leave to proceed under s 21 of the Supreme Court Act 1986 (Vic) were matters of an interlocutory nature. So are applications for leave to proceed under s 54 of the (2014) Act. Had the three applications for leave to proceed that were filed in 2013 been made after 31 October 2014, s 63 of the (2014) Act would have applied to them, with the result that the Court would have been obliged to deal with them 'on the papers', i.e. without an oral hearing, unless the Court considered that there were exceptional circumstances, and that it was appropriate to conduct an oral hearing having regard to the interests of justice. Of course, s 63 of the VPA does apply to the applications in Knight v Cassar (commenced in 2018) and in Knight v Sellman (commenced in 2020). In my view, by analogy with s 63 of the (2014) Act, it has long been at least open to the Court to deal with pre-31 October 2014 applications 'on the papers', at least in a proper case. It will generally be a proper case where no procedural unfairness to a party would be involved and due allowance is made for lack of legal representation.[59] Here, in my view, dealing with the applications for leave of 2013 on the papers, i.e. on the written materials that are in hand now, involves no procedural unfairness to Mr Knight nor any want of due allowance for his lack of legal representation, as I will further explain in due course. The same applies in relation to Knight v Cassar and Knight v Sellman. Indeed, as will be seen, in Knight v Sellman an order was made on 19 March 2020 by Daly AsJ for the application to be determined on the papers. It seems that this order was not the subject of any dispute at the time it was made. Further, in view of the abovementioned connections between the matters which I am determining, it is desirable to deal with all of them as soon as practicable; and, at present, due to the COVID-19 pandemic, the Court is necessarily dealing with more matters than usual 'on the papers'. The Court's power to do so is fortified by s 129B of the Supreme Court Act 1986 (Vic), a provision that was inserted by the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic).

27 As to dealing with applications for leave to proceed in a summary way and/or on the Court's own motion, I note that one of the principal purposes of declaring a person to be a vexatious litigant under the former s 21 of the Supreme Court Act 1986 (Vic) or of making a person the subject of a 'general litigation restraint order' under s 29 of the (2014) Act is to ensure that the person will not be entitled to trouble any proposed defendant or respondent with a need to respond to litigation unless and until the relevant court or tribunal grants leave to proceed (although there may be cases where the court or tribunal invites or directs the proposed defendant or respondent to participate in the processing of the application for leave[60]). Unless and until a proceeding is commenced pursuant to a grant of leave, there is no ordinary inter partes litigation in existence at all. There is merely a unilateral statutory application to the court or tribunal by the person concerned. Subject to the VPA and to the requirements of procedural fairness, and to the need to take into account a lack of legal representation, the court or tribunal itself may respond to the application as it considers appropriate. In that regard, I note that, as J. Forrest J pointed out in A-G v Knight,[61] another fundamental purpose of the statutory framework[62] is to protect Victorian courts and tribunals, and the administration of justice in Victoria generally, from the burdens and ill effects of vexatious litigation. While courts and tribunals should remain mindful of what s 1(a) of the (2014) Act refers to as 'individual rights of access to the courts'[63] and should always be ready and willing to allow a claim that has been shown to be non-vexatious to be commenced, including such a claim made by a prisoner,[64] courts and tribunals should also be astute to ensure that the protective aims of the legislation are met. As Lord Denning said in A-G v Vernazza:[65] 'no man, let alone a vexatious litigant, has a vested right to bring or continue proceedings which are an abuse of the process of the court'.[66] It happens to be the case that, in four of the five applications for leave with which I am dealing,[67] directions have been given for the exchange of written submissions pursuant to the abovementioned practice that is sometimes adopted, of inviting or directing proposed defendants or respondents to participate in the processing of an application for leave. Indeed, in Knight v Sellman detailed written submissions have actually been exchanged. The parties have not actually filed written submissions in the other three matters (being the three applications of 2013), but, as indicated in paragraph 36 below, the Court and Mr Knight were informed in the course of Knight v Sellman that the proposed defendant in each of those three matters would seek to have the application summarily dismissed as futile without further ado.[68] Mr Knight was given an adequate opportunity to make written submissions as to the utility or otherwise of those three applications and said nothing in that regard. In those circumstances (as I will further explain), and having regard to the purposes of the relevant legislation, it seems to me that the Court can and should step in now to bring an end to each of the three applications of 2013. As will also be seen, similar considerations apply to Knight v Cassar.

28 I am in no doubt about the power of the Court to take the steps I propose to take. Even where legislation relating to vexatious litigation does not apply, the inherent jurisdiction of the Court can be availed of, on the Court's own motion, to dismiss a proceeding in order to protect the processes of the Court from abuse.[69] The same power, i.e. the power to summarily dismiss a proceeding that is vexatious or that is otherwise an abuse of process, is also conferred on the Court expressly by Rule 23.01(1) of the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules').[70] It follows, in my view, that Rule 23.01(1) also can be availed of on the Court's own motion. Moreover, as indicated above, the Civil Procedure Act 2010 (Vic) is full of provisions designed to fortify the powers of courts to protect themselves, and to protect the administration of justice generally, from abuse of process and from other undesirable behaviour in civil litigation. In particular, s 63 of the Civil Procedure Act 2010 (Vic) confers power on the Court to dismiss a civil proceeding (which, of course, would include an application for leave to proceed of the present kind) on the Court's own motion, provided only that the Court is satisfied that the civil proceeding has 'no real prospect of success'[71] and that it is 'desirable to summarily dispose of the civil proceeding'.[72] As will be seen, those conditions are amply met in relation to all five matters with which I am dealing.

29 Accordingly, in my view, the Court had and has full power to deal summarily, on the papers, and on its own motion, with applications for leave to proceed made under the former s 21 of the Supreme Court Act 1986 (Vic). The position is a fortiori in relation to applications for leave to proceed made under the VPA.

30 As to each of the applications filed in 2013, the proposed proceeding would amount to an application for judicial review of administrative action taken by the Corrections authorities. The relief to be sought would be an order in the nature of certiorari or mandamus or a declaration. The grant of relief by way of judicial review of administrative action is usually discretionary, even where the applicant is not a vexatious litigant.[73] Usually, the Court can and will refuse certiorari or mandamus or a declaration where such relief would be futile.[74]

31 As indicated above, Mr Knight's three pending leave applications filed in 2013 have all been overtaken by subsequent events and it would be futile and quite wrong to allow any of them to proceed any further.

32 The first in time is Knight v Adult Parole Board (S CI 2013/02043). This is an application for leave to bring an application for judicial review (under Order 56 of the Rules) of a decision made by the Adult Parole Board on 22 March 2013 refusing a request by Mr Knight for a review of an even earlier decision of the Board, namely a decision of 29 June 2012 refusing a request by Mr Knight for a tentative release date. Having regard to the passage of time and the terms of s 74AA(3) of the Corrections Act 1986 (Vic) referred to above (i.e. the provision to the effect that Mr Knight may not be released on parole unless in imminent danger of dying or seriously incapacitated and as a result he no longer has the physical ability to do harm to any person and has demonstrated that he does not pose a risk to the community and that, because of those circumstances the making of the order is justified), the nature of the claim proposed to be made by Mr Knight against the Adult Parole Board in S CI 2013/02043 only needs to be stated to be seen to be now hopeless. It is not necessary to determine whether the existence of the 60 day time limit in Rule 56.02 of the Rules would provide an additional reason for arriving at the same conclusion. The application for leave must, in any event, now be dismissed.

33 Similar reasoning, and the same conclusion, applies to the second and third of Mr Knight's pending 2013 applications.

34 In the second one (Knight v Greg Wilson (Director of the Department of Justice) (S CI 2013/02362)), the proposed defendant originally was Claire Noone, the then Acting Director of the Department of Justice. In 2017, Mr Greg Wilson became the Director of the Department of Justice and an order was made by Daly AsJ substituting Mr Wilson for Ms Noone.[75] The relief that would be sought is an order in the nature of certiorari to quash a decision made by Ms Noone on 11 April 2013 refusing a request by Mr Knight for a rehabilitation and transition permit under the Corrections Act 1986 (Vic). The request was intimately related to the then upcoming expiry of Mr Knight's non-parole period. There is absolutely no prospect of this Court requiring the Department of Justice to now reconsider that decision of 11 April 2013. To do so at this stage would be completely pointless.

35 The third in time of the applications filed in 2013 is Knight v Adult Parole Board (S CI 2013/06673). In that matter, Mr Knight would seek an order in the nature of mandamus requiring the Adult Parole Board to review a decision of 9 December 2013 in relation to parole, and to inform Mr Knight of what the Parole Board required of him before he was granted parole. Obviously, that dispute has also been entirely overtaken by the subsequent events to which I have referred.

36 As mentioned above, in Knight v Sellman, Mr Knight was afforded an opportunity to comment on whether there was anything useful left in the 2013 applications. The matter of futility was specifically raised in paragraph 21 of the affidavit of 9 April 2020 of the proposed defendant, Ms Sellman, and in paragraph 9(i) of the submissions dated 9 April 2020 filed by Ms Sellman. In his reply submissions dated 24 April 2020, Mr Knight commented specifically on large parts of Ms Sellman's material, but notably made no reference whatever to the matter of the futility of the applications filed in 2013. Plainly, nothing can be said by Mr Knight against the proposition that each is now hopeless on the ground of futility. The concern of the law relating to procedural unfairness is with practical injustice.[76] Mr Knight suffers no practical injustice in not being given a further opportunity to make submissions in relation to the three applications filed in 2013.

37 It is clear that the continuation of any of the three applications of 2013 would be an abuse of the process of this Court. In those circumstances, even on the assumption (adopted above) that the provisions of the (2014) Act are not relevantly applicable, it is more than appropriate, under the pre-31 October 2014 principles, that the Court should now dismiss each of Mr Knight's three pending leave applications filed in 2013.

38 The matter of Knight v Cassar is an application by Mr Knight under s 54 of the VPA for leave to commence a proceeding against Dr Emma Cassar in her capacity as the Commissioner of Corrections Victoria.

39 The orders Mr Knight would seek in the proposed proceeding are stated as follows in the initiating document:

1. An order in the nature of certiorari directing the defendant to reconsider the annual review of the plaintiff's classification and placement according to law and pursuant to s.47(1)(l) of the Corrections Act 1986 (Vic), on the ground that the defendant's Major Offenders Unit failed to give a proper and realistic consideration of the merits of the plaintiff's case when it decided on 10 October 2018 that the plaintiff remain at Port Phillip Prison as an A2 Maximum Security rated prisoner.
2. A declaration that the defendant has a statutory obligation to prepare the plaintiff for release on parole pursuant to s.74A(3)(a)(ii) of the Corrections Act 1986 (Vic).

40 As I will indicate, Mr Knight has had a sufficient opportunity to show that leave should be granted to commence a proceeding seeking one or other or both of those orders. However, what he has put forward does not show any such thing. For the purposes of s 55(a) of the Act, I am not satisfied that the proposed proceeding would not be a 'vexatious proceeding' (as defined). For the purposes of s 55(b), I am not satisfied that there are 'reasonable grounds' for the proposed proceeding. In fact, I am positively of the view that the proposed proceeding would be futile and doomed to fail and would therefore be an abuse of process. Leave to proceed must be refused and the application must be dismissed.

41 I turn first to the proposed order stated in paragraph 1 of the initiating document.

42 On Mr Knight's own material, the administrative decision sought to be impugned was made by the Major Offenders Unit on 10 October 2018 at its annual review of Mr Knight's classification and placement. It may safely be inferred that the annual review of 10 October 2018 has now been superseded by a subsequent annual review (presumably held in or about October 2019). There is nothing to suggest that it matters anymore whether 'proper and realistic consideration' was given to the merits of Mr Knight's case for re-classification and a new placement in 2018. The most that Mr Knight could have achieved in his proposed proceeding (had it been duly instituted and duly prosecuted) was a quashing (by an order in the nature of certiorari) of the 2018 decision, and, if sought, an order in the nature of mandamus requiring that the 2018 decision be reconsidered according to law. But Mr Knight's classification and placement has by now been reconsidered by the Major Offenders Unit in any event. Hence any order of the kind stated in paragraph 1 of the orders sought would now be futile. At the very least, I am not satisfied that it would not be futile.

43 Even if that were not so, the application still falls to be dismissed, insofar as it relates to paragraph 1 of the orders sought, for want of any evidence or other material to support the proposition that the Major Offenders Unit 'failed to give a proper and realistic consideration of the merits of [Mr Knight's] case when it decided on 10 October 2018 that [he] remain at Port Phillip Prison as a Maximum Security rated prisoner'. The material filed by Mr Knight in Knight v Cassar includes an affidavit originally dated 30 October 2018 but re-affirmed on 4 April 2019. The affidavit is 241 pages long. However, only five paragraphs could be said to relate in any way to the decision of the Major Offenders Unit of 10 October 2018, namely, paragraphs 233 to 237 (inclusive). Those are the only paragraphs that appear under the heading 'Cause of Action'. In paragraph 233, Mr Knight refers to every prisoner's right under s 47(1)(l) of the Corrections Act 1986 (Vic) to be classified in accordance with that provision as soon as possible after being sentenced 'and to have that classification reviewed annually'. In paragraph 234, Mr Knight deposes that, on 26 April 2018, he wrote to the then acting Commissioner of Corrections, Mr Wise, seeking a reduction of his security rating from A2* Maximum Security to B* Medium Security, and a transfer from the Maximum Security PPP to the Medium Security Ravenhall Correctional Centre. He deposes that he did not receive a response to that letter. In paragraph 235, Mr Knight deposes that on 31 July 2018, he wrote to Dr Cassar, as the Commissioner for Corrections, seeking the same things. A copy of the letter is exhibited. The letter contains some short representations based in part on the suggestion that the requested changes would assist Mr Knight to demonstrate, for the purposes of s 74AA(3)(a)(ii) of the Corrections Act 1986 (Vic), that Mr Knight does not pose a risk to the community so far as his release on parole is concerned. I will return to that matter in due course. In paragraph 236 of the affidavit, Mr Knight deposes that the Acting Deputy Commissioner, Operations, of Corrections Victoria, Mr Brendan Money, wrote to him in response to his letter of 31 July 2018 and said:

Regarding your security rating, I would advise that you discuss this matter with the Major Offenders Unit Panel at your next quarterly review.

It is desirable to set out the whole of paragraph 237 of the affidavit. It reads:

On 10 October 2018, I had my classification and placement subjected to an annual review conducted by Corrections Victoria's Major Offenders Unit ('MOU'). This review was headed by acting Deputy Commissioner, Operations, Mr Brendan Money. I raised my requests to have my Security Rating lowered and to transfer to the Ravenhall Correctional Centre. The decisions of the MOU were that my Security Rating remain as A2 *Maximum Security and that I remain at Port Phillip Prison.

44 There is nothing else of relevance in the affidavit or in any other material filed or relied on by Mr Knight in Knight v Cassar. Plainly, the five paragraphs in the affidavit (and the exhibit) do not support Mr Knight's proposed claim that there was a failure on the part of the Major Offenders Unit to give proper and realistic consideration to the merits of Mr Knight's requests.

45 Having regard to and applying the principles relating to litigants without legal representation stated in Roberts v Harkness,[77] it is neither necessary nor appropriate to give Mr Knight a further opportunity to file evidence in support of the relief he would claim under paragraph 1 of the initiating document in Knight v Cassar. Mr Knight has represented himself in the overwhelming majority of his multifarious applications to this Court and to other courts and tribunals. He may not be legally qualified, but he is highly intelligent, highly articulate and immensely experienced in litigation. The relevant Court files indicate that he is in regular contact with the Prothonotary or other Registry staff of this Court. Although he frequently brings claims that he must know have little or no legal or other merit, he knows more about the substantive law relevant to claims by prisoners than many Australian lawyers do, and he is very familiar with the law and practice relating to civil procedure generally and to vexatious proceedings in particular. As indicated above, he has been the subject of two painstaking general examinations by this Court of his litigious behaviour, each of which led to a detailed judgment in which he was found to be a vexatious litigant and to consequential orders. Those judgments speak volumes. As mentioned above, Mr Knight has made and litigated numerous applications for leave to proceed under the former s 21 of the Supreme Court Act 1986 (Vic) and numerous applications under s 54 of the VPA for leave to commence a proceeding or for leave to make an interlocutory application within such an application, as well as many other applications to courts and tribunals in Australia. He has obviously read many judgments of this Court relating to his matters. He has known for over five years what the VPA and the Rules of this Court require an applicant to do in relation to an application for leave to proceed under the Act. In particular, he knows that, under s 55 of the Act, the burden is on the applicant to satisfy the Court that the proposed proceeding is not a 'vexatious proceeding' (as defined) and that there are 'reasonable grounds' for the proceeding.[78] Further, he knows that an application to this Court under s 54 for leave to proceed must be made by filing a document in accordance with Rule 83.04 and Form 83E of the Rules. He has used Form 83E many times. He knows that Form 83E requires the applicant to set out in numbered paragraphs the 'reasonable grounds' for the proposed proceeding that are claimed to exist. He knows that Rule 83.04 and Form 83E, read together, require that the completed Form 83E, when filed, be accompanied by an affidavit that includes the details required by s 56 of the Act, including details of all previous applications for leave to proceed or to commence or continue a proceeding made by the applicant; details of each interlocutory application made or proceeding commenced or conducted by the applicant that has been found to be vexatious; an explanation as to how the current application for leave to proceed is materially different to each of the previous applications listed; and, importantly for present purposes, all of the facts material to the application (whether in support of or adverse to the application) that are known to the applicant. He therefore knows that an application to this Court for leave to proceed should be comprehensive and should speak for itself from the outset; and that this is confirmed by s 57 of the Act, under which the Prothonotary of the Supreme Court may refuse to accept an application for filing or lodgement if not satisfied that it is materially different from a previous application made by the applicant. Mr Knight knows that, under s 58 of the Act, the Court itself may dismiss an application for leave to proceed made by a person if not satisfied that the application is materially different from a previous application made by the person. He knows that, by virtue of ss 59 and 60 of the Act, so far as relevant, a person who makes an application to this Court for leave to proceed must not give notice of the application to any person named in the application unless the Court otherwise directs or orders. He knows that s 63 of the VPA provides, in effect, that applications to this Court for leave to proceed may be determined by the Court on the basis of written submissions without any appearances, and that an oral hearing may only be held if the Court considers that there are exceptional circumstances and that it is appropriate to do so, having regard to the interests of justice. He knows that one of the purposes of those provisions is to shield proposed defendants or respondents from any need to deal with a proposed claim unless and until the relevant court or tribunal is satisfied that the application should proceed.[79]

46 It is true that, for some reason not disclosed by the file, the proposed respondent, Dr Emma Cassar, has recently come into the matter. She was represented at a directions hearing before Daly AsJ on 3 March 2020. On that day, her Honour ordered that the further hearing of Mr Knight's application under s 54 be adjourned to a date to be fixed not before 12 March 2020 and ordered that the parties' costs be reserved. As I have already mentioned, the intention was to defer any further steps in Knight v Cassar until after the determination of Knight v Sellman. The only other thing that has happened since in Knight v Cassar is the filing of a notice of appearance by Dr Cassar on 16 March 2020. However that may be, in my opinion, Mr Knight's proposed claim for an order in the nature of certiorari against Dr Cassar should not be permitted to proceed any further. In matters arising under the Act, the content of the (flexible) rules of natural justice or procedural fairness is to be discerned, and those rules are to be applied, in a manner that is not inconsistent with the relevant provisions of the VPA and the Rules.[80] In the filing of his application and accompanying affidavit in Knight v Cassar, Mr Knight has had a reasonable opportunity to show, for the purposes of s 55(b) of the Act, that there are reasonable grounds for the proposed proceeding in so far as it would be claimed in the proceeding that, in October 2018, the Major Offenders Unit failed to give 'proper and realistic consideration' to the merits of his case for re-classification and for a new prison placement. As a matter of procedural fairness, he is entitled to no more than such an opportunity.[81] He has not shown what he was required to show for the purposes of s 55(b) of the Act.

47 Further, as already mentioned, any order in the nature of certiorari in respect of the 2018 decision of the Major Offenders Unit would be futile. That alone would be sufficient reason to dismiss Mr Knight's application insofar as it relates to paragraph 1 of the initiating document. When both deficiencies are considered, it is all the more apparent that the application for leave should not be further entertained insofar as it relates to that paragraph.

48 I turn now to the proposed claim for a declaration as set out in paragraph 2 of the orders sought, namely a declaration that Dr Cassar (as the Corrections Commissioner) has a statutory obligation to prepare Mr Knight for release on parole pursuant to s 74AA(3)(a)(ii) of the Corrections Act 1986 (Vic). This proposed claim is manifestly absurd and hopeless, as appears from a reading of s 74AA as a whole:

Conditions for making a parole order for Julian Knight

(1) The Board must not make a parole order under section 74 in respect of the prisoner Julian Knight unless an application for the order is made to the Board by or on behalf of the prisoner.

(2) The application must be lodged with the secretary of the Board.

(3) After considering the application, the Board may make an order under section 74 in respect of the prisoner Julian Knight if, and only if, the Board -

(a) is satisfied (on the basis of a report prepared by the Secretary to the Department) that the prisoner -

(i) is in imminent danger of dying, or is seriously incapacitated, and as a result he no longer has the physical ability to do harm to any person; and

(ii) has demonstrated that he does not pose a risk to the community; and

(b) is further satisfied that, because of those circumstances, the making of the order is justified.

(4) The Charter of Human Rights and Responsibilities Act 2006 has no application to this section.

(5) Without limiting subsection (4), section 31(7) of the Charter of Human Rights and Responsibilities Act 2006 does not apply to this section.

(6) In this section a reference to the prisoner Julian Knight is a reference to the Julian Knight who was sentenced by the Supreme Court in November 1988 to life imprisonment for each of 7 counts of murder.

49 The tenor of every provision in s 74AA is negative and restrictive in relation to the prospect of the release of Mr Knight on parole. Contrary to Mr Knight's case, s 74AA(3)(a)(ii) does not, expressly or impliedly, impose a duty on anyone to do anything to advance Mr Knight's prospects of parole. Much less does it impose, or imply that there is, a duty on the Corrections Commissioner to prepare Mr Knight for parole. Mr Knight's proposed claim for a declaration that the Corrections Commissioner has a statutory obligation to prepare him for release on parole pursuant to s 74AA(3)(a)(ii) of the Corrections Act 1986 (Vic) is baseless and doomed to fail. It should not be entertained any further.

50 For these reasons, Mr Knight's application in Knight v Cassar (S ECI 2018/03024) will be dismissed.

51 As mentioned above,[82] Knight v Sellman is, in essence, an application for leave to seek orders that PPP give Mr Knight access, or greater access, to a certain computer or to certain computer files. Once again, Mr Knight has had a reasonable opportunity to persuade the Court that he should have leave to commence the proposed proceeding. He has failed to persuade me. Quite the contrary. As I will explain, I am not satisfied that the proposed proceeding would not be an abuse of the process of the Court. Hence I am not satisfied that it would not be a 'vexatious proceeding', for the purposes of s 55(a) of the Act.[83] Therefore, pursuant to s 55 of the Act, I must dismiss the application. Nor am I satisfied, for the purposes of s 55(b) of the Act, that there are 'reasonable grounds' for the proposed proceeding. For that reason, too, I must dismiss the application. Indeed, I am positively satisfied that the proposed proceeding would be an abuse of the process of the Court and that there are no reasonable grounds for the proposed proceeding. Further, there is at least considerable overlap between the application in Knight v Sellman and previous applications for leave made by Mr Knight. For that reason, and by reason of events subsequent to the commencement of the application, and for other reasons to be mentioned, the application would, in any event, fall to be dismissed in the exercise of the Court's general discretion under the Act.[84]

52 As to Mr Knight's opportunities to persuade the Court that leave should be granted, I refer again to Mr Knight's experience and capacities, and to his knowledge of the relevant substantive and procedural law, as indicated in paragraph 45 above. I refer again also to the tenor and policy of the relevant provisions of the Act. Against that background, I turn first to the genesis of the application in Knight v Sellman; then to its procedural history (including the evidence adduced and the submissions made); and finally to its determination.

53 On 24 January 2020, about four weeks before the application in Knight v Sellman was filed, Mr Knight wrote a letter to Daly AsJ, with a copy to Ms Debra Coombs of the Victorian Government Solicitor's Office. Ms Coombs had apparently been handling various matters relating to Mr Knight on behalf of Victorian State entities. The subject of the letter was stated to be seven listed applications by Mr Knight for leave to proceed, each of which was then pending in this Court. The list was comprised of the three applications of 2013 referred to above, the three other applications referred to above, namely, Knight v Cassar, Knight v The Queen and Knight v Assafiri, and one other matter, Knight v Castle (S ECI 2018/03023). Knight v Castle was then the subject of a reserved judgment. Subsequently, on 17 February 2020, the Honourable Justice Moore gave judgment in Knight v Castle, dismissing the application. I will return to his Honour's judgment in due course.

54 In the letter of 24 January 2020, Mr Knight claimed that he was unable to 'prosecute' any of the seven proceedings 'due to the actions of Port Phillip Prison management'. He referred to directions that had been given by Daly AsJ on 29 August 2019 setting down the three applications of 2013 for hearing during 2020. He said that from 8 December 2017 to 21 November 2019 he had had access to a prison-issue laptop computer. He said that this computer contained the 'only copies' of his electronic legal and personal files. He said that after 21 November 2019, PPP management and Corrections Victoria decided to 'withdraw access to the computer (and the files on it)'. He said that their stated reason for doing so was that, as his proceedings were civil in nature (including his application in Knight v The Queen), 'they are under no obligation to assist [his] access to the Court'. He also claimed that his 'repeated requests' to regain access to the computer, or to be lent the computer on a temporary basis and to have all of his files copied onto DVDs, had been denied or ignored. Mr Knight further claimed that even if his files were copied onto discs, he would have nowhere to save new or amended files. He said that he had raised these issues with the Prothonotary and requested an oral hearing 'under s 63 of the Vexatious Proceedings Act 2014', but that his request had been refused on the ground that it was not 'urgent'. He submitted that his position was exactly that described as a hypothetical one by Gillard J in Rich v Groningen.[85] He concluded by saying that, in light of 'current circumstances', he requested a directions hearing in relation to the three applications of 2013, and to be heard on an application for interlocutory relief directed towards the 'release' of his files. Mr Knight attached to the letter a 'further affidavit' of his dated 21 January 2020 which was headed in, and which was intended to be filed in, the abovementioned proceeding of Knight v Castle in which judgment by Moore J then stood reserved. The exhibits to that affidavit ('JK-10' to 'JK-20') were also attached to the letter.

55 On 10 February 2020, the Associate to Daly AsJ responded in writing to Mr Knight's letter of 24 January 2010. The Associate reported that her Honour:

• noted that Mr Knight was not required to take any steps in any of the proceedings filed in 2013 until May 2020 and August 2020, and that those steps would only involve providing submissions in reply to submissions which had not yet been made;
• would arrange for copies to be made of all of the court documents in the proceedings filed in 2013 and for the copies to be mailed to Mr Knight to assist him to prepare for those matters;
• suggested, in relation to the balance of the proceedings, that Mr Knight file and serve an application identifying the files that he sought to have provided to him with some degree of precision;
• indicated that Mr Knight's affidavit of 21 January 2020 could be treated as an affidavit in support of an application to the Court for an order that Mr Castle[86] provide or make available the files that Mr Knight sought; and
• indicated that her Honour would consult with Judicial Registrar Clayton regarding a date for the application to be listed.

56 It appears that this exchange led to the initiation of the proceeding now known as Knight v Sellman. The new proceeding was initiated on 17 February 2020 when Mr Knight filed a document purporting to be in accordance with Form 83E, together with a copy of his 'further affidavit' of 21 January 2020 and copies of the exhibits to that affidavit. The initiating document in Knight v Sellman did not fully accord with Form 83E. It did not set out the asserted 'reasonable grounds' for the proposed proceeding. Instead, in the place where those grounds should be set out, only the following statement appeared:

1. The facts support the making of the orders sought.

57 In the initiating document, under the heading 'Orders Sought', the following appeared:

1. A mandatory injunction directing the General Manager of Port Phillip Prison to give the applicant access to the prison-issued laptop computer that the applicant had access to from 8 December 2017 to 21 November 2019, or
2. A mandatory injunction directing the General Manager of Port Phillip Prison to copy the applicant's files contained in his account on the laptop computer that he was given access to from 8 December 2017 to 21 November 2019, and provide them to the applicant.

The word 'or' between paragraphs one and two of the orders sought is noteworthy. The proposed claim was for one thing or the other, not both.

58 The initiating document, being based on a printed form, also asserted that the application was accompanied by an affidavit disclosing the details required by s 56 of the Act. That assertion was inaccurate. As I have already indicated, the accompanying affidavit was Mr Knight's affidavit of 21 January 2020 (and its exhibits). That affidavit did not answer the description in the initiating document in that it did not include all of the details required by s 56 of the Act. For example, it did not purport to show that the present application was materially different from each and every one of those previous applications. Nevertheless, in accordance with the indication that had been given by Daly AsJ, the Registry accepted the affidavit (and its exhibits) for the purposes of the new proceeding.

59 In his affidavit of 21 January 2020, Mr Knight refers, in paragraph 1, to his five previous affidavits filed in Knight v Castle. In paragraph 2, he mentions that Mr Castle had been replaced by Ms Sellman. In paragraph 3, he notes the date (17 August 2017) on which the High Court dismissed his constitutional challenge. In paragraphs 4-21, he sets out a chronology of alleged events from 29 November 2017 to 31 December 2019. I turn first to that chronology, with some added comments or elaborations by me (either in the body of this judgment or in footnotes) that are separately identifiable.

60 On 29 November 2017, (Mr Knight deposes) a major fire occurred in the control room of PPP. The prison was in total or partial lockdown for five weeks after the fire.[87]

61 On 7 December 2017, emails were exchanged between the proposed defendant, Ms Sellman, who was the then Deputy General Manager of PPP, and the then Deputy Commissioner, Custodial Operations, of Corrections Victoria, Mr Wise.[88] The emails concerned an agreement for PPP to issue to Mr Knight a laptop computer on an in-cell basis in order 'to allow [Mr Knight] to adequately prepare for his court cases'. Three of those cases were the applications of 2013 that, as of January 2020, were listed for hearing later in 2020. In the email exchange, Mr Wise noted 'that these special arrangements will cease once normal operations have been restored'. However, according to Mr Knight, normal operations were never restored at the prison library.

62 On 8 December 2017, Mr Knight was issued with a Dell Latitude E6410 laptop computer and two CD-Rs containing copies of all the files that were stored in his PC computer account on the PPP library computer server. Concurrent with the issue of the computer, he was 'made' to sign a 'Short-term Computer Access Agreement' dated 8 December 2017. A copy of the agreement is exhibited. For the following five weeks, Mr Knight had access to the computer on a full time, in-cell basis.[89]

63 On 15 January 2018, the laptop computer was removed by prison management.[90]

64 On 16 January 2018, Mr Knight was told that he could access the laptop computer at the prison library for two hours on Tuesday afternoons and two hours on Thursday afternoons. Concurrent with that instruction, he was 'made' to sign a new Computer Access Agreement. A copy of the agreement dated 16 January 2018 is exhibited. This arrangement existed until 21 November 2019.[91]

65 On 29 October 2018, Mr Knight was 'made' to sign a new agreement entitled 'Computer Access for Legal Preparation - (Agreement)'. This agreement stated that Mr Knight's 'access to the laptop computer will continue as per [his] previous agreement dated 16 January 2018 with some additional amendments, in order to assist [him] in preparing for pending legal cases'. A copy of the agreement dated 29 October 2018 is exhibited.[92]

66 On 1 May 2019, Mr Knight submitted a list of authorities in relation to Knight v Castle. A copy is exhibited.[93]

67 On 30 October 2019, the Commonwealth Administrative Appeals Tribunal (AAT) gave certain directions in a proceeding in which Mr Knight was an applicant, namely, Knight v Commonwealth Ombudsman. That proceeding was a combination of two applications for review, each begun by Mr Knight in 2017. The AAT had, at one stage, adjourned the proceeding pending the outcome of Knight v Castle. Later, Mr Knight asked the AAT to set the matter down for hearing. In consequence, on 30 October 2019, as just mentioned, the AAT issued directions, including a direction that Mr Knight was to file various documents by 20 January 2020. However, in the meantime, Mr Knight wrote to the AAT to again request an adjournment given the 'seizure' of the laptop computer that he was using, and the files contained on it, by prison management.[94]

68 On 19 November 2019, Deputy Commissioner Wise wrote to Mr Knight in relation to his repeated requests to have greater computer access to prepare for current court and tribunal proceedings. A copy of Mr Wise's letter is exhibited as Exhibit JK-16. In the letter, Mr Wise tells Mr Knight that he had asked Ms Sellman (by then the general manager of PPP) to review the current arrangements regarding Mr Knight's access to the laptop.[95] I note that, although not referred to by Mr Knight in the affidavit, the following two paragraphs are contained in the letter to him from Mr Wise dated 19 November 2019:

I understand from Ms Trish Sellman, General Manager, Port Phillip Prison, that you continue to access a dedicated monitored laptop for legal purposes and a process is in place to print any required documentation by your Area Manager. When you had possession of approved USBs you uploaded data to a library computer and, I am told, repeatedly attempted to obtain copies of your crime scene photographs despite clear instructions not to do so without prior arrangement. This caused some significant distress to the Education Coordinator who innocently opened the file to arrange printing, only to be confronted with the graphic photos without warning....

I understand that Port Phillip Prison has purchased two dedicated computers for prisoner use to review legal material. These are bookable via Government Functions.

The contents of those two paragraphs have not been disputed by Mr Knight.

69 There is (Mr Knight points out) a factual mistake in Mr Wise's letter of 19 November 2019 about the order of events as between the date (17 August 2017) of the finalisation of Mr Knight's High Court matter and the date (8 December 2017) of the 'Short-Term Computer Access Agreement'.[96]

70 On 21 November 2019, Mr Knight was permitted to use the laptop computer for the last time.[97]

71 Paragraph 15 of Mr Knight's affidavit should be set out in full. It reads:

On 29 November 2019 I was informed that prison management had decided I would no longer have access to the laptop because all of my proceedings are civil in nature. I explained that one of my Supreme Court proceedings - Knight v The Queen (S ECI 2018 03025) - was a belated appeal against conviction and sentence out of time. I was told that this was considered to be civil in nature because I must first obtain leave as a vexatious litigant in order to file my appeal.

I note that Mr Knight does not identify any particular representative of 'prison management' in relation to this alleged exchange. Nor does he say whether the alleged exchange was oral or in writing.

72 On 1 December 2019, Mr Knight submitted a prisoner request form for continued access to the laptop computer in order 'to enable preparation for known legal cases'. This request was 'not approved' by PPP Deputy General Manager Ali Assafiri on 4 December 2019.[98]

73 On 6 December 2019, Mr Knight submitted another application for access to a personal computer, but the application was not processed.[99]

74 On 11 December 2019, Miss Isabelle Skaburskis of Doogue + George Defence Lawyers, a solicitor acting for Mr Knight, wrote to the General Manager of PPP in support of Mr Knight's request for 'access to an in-cell computer'. The basis of this support was Mr Knight's 'pending submission of a communication to the UN's Human Rights Committee.' A copy of the letter of Ms Skaburskis of 11 December 2019 is exhibited.[100] I observe that it is very general in nature and very short. It simply says:

I am currently acting for Julian Knight in relation to a complaint to the United Nations Human Rights Committee. This submission requires considerable research, drafting, and reviewing of material dating from Mr Knight's original offending.

It is important that Mr Knight is able to assist me in this submission. He would be greatly facilitated in doing so if he is able to retain access to an in-cell computer.

75 On 17 December 2019, the Prothonotary of the Supreme Court wrote to Mr Knight in relation to the status of his seven then current Supreme Court proceedings. A copy of the letter dated 17 December 2019 is exhibited.[101] I note that three (only) of those proceedings were listed for trial in 2020. They are the three proceedings from 2013 which I have dealt with above.

76 On 19 December 2019, Mr Knight submitted a prisoner request form for temporary access to the laptop computer 'in order to update legal plus personal files before they are copied onto DVD by IT'. This request was 'Not Approved' by Ms Sellman on 30 December 2019 with the instruction that Mr Knight resubmit an Application for Access to a Personal Computer.[102]

77 On 31 December 2019, Mr Knight submitted another Application for Access to a Personal Computer. Attached to the application were copies of Ms Skaburskis' letter, the Prothonotary's letter, various court orders and a print-out his current prison TAFE education course enrolment (English and Information Technology).[103]

78 The remainder of Mr Knight's affidavit of 21 January 2020 consists of paragraphs 22 to 30. I will set them out verbatim shortly. As will be seen, paragraph 22 amounts to an assertion as to why PPP and Corrections Victoria were not supportive of Mr Knight's application for an in-cell computer as at the time of the affidavit. Paragraph 23 contains citations and paragraph references for three judgments of the Supreme Court of Victoria (all from as far back as 2010 and 2011) in which 'judicial comment' is said to have been made about the appropriateness of a prison making any distinction between civil and criminal matters in relation to access to an in-cell computer. Paragraph 24 of the affidavit lists what was allegedly available by way of computer facilities and legal resources in the PPP library before the fire of November 2017. Paragraph 25 lists the changes that were allegedly made in relation to the listed items following the fire.

79 In paragraphs 26 to 29, Mr Knight says, in substance, that certain PPP library facilities that had been noted in previous Supreme Court judgments are no longer available, or are no longer available to the same extent. In paragraph 30, Mr Knight details the alleged requirements for printing legal documents at PPP.

80 As indicated above, I consider it desirable to set out paragraphs 22 to 30 of Mr Knight's affidavit verbatim:

1. My understanding is that my Application for Access to a Personal Computer is not supported by PPP, and that it has been rejected by Corrections Victoria on the grounds stated by Mr Wise in his letter dated 19 November 2019 that my 'circumstances would not seem to meet the criteria for accessing an in-cell computer'. The criteria as outlined in Corrections Victoria's Commissioner's Requirement 2.1.2: Prisoner Computers is that 'Permission to access an in-cell computer solely in order to work on civil matters will not ordinarily be granted' (Prisoner In-Cell Computer Criteria, page 17).
2. Corrections Victoria's policy of not approving prisoner access to an in-cell computer in order to prepare for civil as opposed to criminal proceedings has been the subject of judicial comment by the Honourable Robson J in Knight v Hastings [2010] VSC 99, at [196]-[198]; by the Honourable Nettle JA and Maxwell P in Commissioner, Corrections Victoria v Knight [2010] VSCA 203, at ]17] & [33]-[34]; and by the Honourable Hollingworth J in Knight v Wise [2011] VSC 313, at [35]-[39].
3. Prior to the fire at PPP the prison library:
   • Had 3 standalone computers connected to a server;
   • Had prisoner PC accounts on the server where prisoners could save their files;
   • Allowed prisoners without accounts to save documents on the computers' hard drive;
   • Had a printer for use by prisoners who supplied their own paper;
   • Had a range of electronic legal resources on the server (e.g. LexisNexis);
   • Had an extensive range of law books; &
   • Permitted prisoner access to the library during all mainstream times.
4. Following the fire at PPP the prison library:
   • Has 3 standalone computers connected to a server;
   • Has removed the prisoner PC accounts from the server;
   • Does not allow prisoners to save documents on the computers' hard drives;
   • Has removed the printer;
   • Has removed all the electronic legal resources from the server;
   • Is missing around half the law books previously held in the library; &
   • Only permits prisoners to access the library once a week.
5. Leave has been granted on three occasions previously by the Court in relation to applications by me for judicial review of prison management decisions regarding computer access for the preparation of legal proceedings:

• Knight v Hastings [2010] VSC 99

• Knight v Wise [2011] VSC 313

• Knight v Wise [2014] VSC 76

1. Leave was refused in the one appeal against a grant of leave:

• Commissioner, Corrections Victoria v Knight [2010] VSCA 203.

1. Reference was made by the Honourable T Forrest J in Knight v Wise [2014] VSC 76 (at [30]) 'to a considerable number of primary and secondary legal resources at the Port Phillip Prison Library.' As outlined in paragraph 25 above, these resources have been removed or not restored or replaced by prison management.
2. Reference has been made in previous decisions of this Court to access to computers in the library 'during mainstream sessions' (Knight v Hastings [2010] VSC 99, at [69]), 'up to four hours per day ... each weekday' (Knight v Deputy Commissioner, Corrections Victoria [2012] VSC 506, at [27]), and 'Between the hours of 8:40AM and 4:00PM Monday, Tuesday, Thursday and Friday' (Knight v Wise [2014] VSC 76, at [30]). As outlined in paragraph 25 above, prisoners are now limited to one 2½ hour library session per week.
3. Prisoners wishing to have legal documents printed must save them temporarily to one of the standalone computers in the prison library (the computers are programmed to automatically delete all saved files at 1200hrs and 1600hrs each day). They then submit a request to have the documents in question printed, at the cost of 10¢ per page. The prison's Education Coordinator then removes the relevant files by way of USB and examines each document. If approval is given to have the document printed by the Education Coordinator, it is printed and provided to the prisoner in 1-4 days. All files on the USB are deleted by the Education Coordinator once printing has been done.

Judgment of Moore J in Knight v Castle on 17 February 2020

81 As indicated above, Mr Knight's re-stamped affidavit of 21 January 2020 was filed on 17 February 2020, together with his Form 83E, in order to commence the application for leave in Knight v Sellman. On the same day, 17 February 2020, Moore J published his Honour's judgment in Knight v Castle.[104] In his judgment, Moore J noted that the application filed by Mr Knight was an application for leave to commence a proceeding in which he sought

[a] declaration that in the circumstances the plaintiff's common law right to unimpeded access to the Court entails access to computer facilities, as was provided to the plaintiff by the defendant from 8 December 2017 to 15 January 2018, including access to printing facilities.[105]

A resemblance, at least, to Knight v Sellman is immediately apparent.

82 Moore J noted that Mr Knight's application concerned access to computer and printing facilities at PPP and that it was supported by six affidavits, some originally affirmed in 2018, but all either re-affirmed or newly affirmed between 4 April 2019 and 21 January 2020.[106] The sixth affidavit was Mr Knight's affidavit of 21 January 2020. Moore J noted that the first four affidavits were the same as those relied upon by Mr Knight in the course of applications that had been made by Mr Knight in 2018 for leave to commence interlocutory applications within the three above-mentioned applications that had been filed in 2013. Moore J had given judgment rejecting those interlocutory applications on 6 June 2019.[107] In his Honour's judgment in Knight v Castle,[108] Moore J noted that the four affidavits had deposed to numerous matters, including that Mr Knight was provided with a laptop computer and a copy of his computer account on CD-ROM between 8 December 2017 and 15 January 2018; that this coincided with a period that PPP was in total lockdown and the prison library was not open; and that Mr Knight was attempting to prepare for various legal proceedings. In his fifth affidavit in Knight v Castle, as summarised by Moore J, Mr Knight had deposed that in March and April 2019 the prison had refused certain requests Mr Knight had made relating to computer access. Moore J then summarised those parts of Mr Knight's sixth affidavit (i.e. his 'further affidavit' of 21 January 2020 that later became common to both proceedings) that his Honour found to be relevant for determining Knight v Castle.

83 In these circumstances, it becomes evident that the resemblance between Knight v Castle and Knight v Sellman is a close one. And in deciding to dismiss the application in Knight v Castle, Moore J decided that he was not satisfied for the purposes of s 58 of the VPA that it was materially different from previous applications brought by Mr Knight.[109] It seems, therefore, that there must also be close similarities, at least, between the various proceedings prior to Knight v Castle on which Moore J relied for his conclusion, on the one hand, and Knight v Sellman itself, on the other hand.

84 On or about 27 February 2020, the Registry of this Court contacted PPP to advise of the new application by Mr Knight and to notify the prison management of a scheduled directions hearing before Daly AsJ on 3 March 2020. In response, the Court was advised on 28 February 2020, by solicitors acting for Ms Sellman, that the solicitors would appear for her at the directions hearing on 3 March. Accordingly, at that directions hearing, Mr Knight appeared in person and Ms Nunnink, solicitor, appeared for Ms Sellman. The matter was adjourned to 12 March 2020 for further directions. This was to allow for further instructions to be received from Ms Sellman, given that Mr Knight had raised certain matters only shortly before the directions hearing of 3 March 2020. The parties were to attempt to resolve the matter without the need for a further hearing.

85 Shortly before the date of the next directions hearing (12 March 2020), Ms Sellman's representatives offered to provide Mr Knight with materials from his computer files in the form of a DVD or disk. As a result, the directions hearing was vacated by consent on the papers and the matter was relisted for 19 March 2020.

86 On 19 March 2020, Mr Knight appeared in person once again and Ms Nunnink again appeared for Ms Sellman. The outcome of the hearing is summarised in the 'Other Matters' section of the order made on that day by Daly AsJ, as follows:

1. The proposed respondent has prepared two disks of material obtained from the applicant's laptop. One disk, which has been provided to the applicant, contains Microsoft Word documents and other like documents relevant to ongoing legal proceedings. The other disk ('second disk') contains images, some of which are not suitable for unrestricted viewing and circulation (being crime scene and autopsy photographs). The applicant is not satisfied with there being restricted access to this material. The applicant expects that he only needs access to a limited number of the potentially sensitive images.
2. Accordingly, the only issue which remains in this proceeding is the applicant's access to images on the second disk, which he requires to prepare his submissions and evidence for the purpose of bringing his application for leave to bring an appeal against his conviction out of time. This application has been allocated to Richards J for determination.

Notably, these recitals indicate that the 'only issue' remaining at that stage related to Mr Knight's desire to have access to a 'limited number' of the images on the second disk.

87 The orders made by her Honour on 19 March 2020 were as follows:

1. By 4.00pm on 2 April 2020, the proposed defendant file and serve any affidavits and submissions upon which she intends to rely.
2. By 4.00pm on 21 April 2020, the applicant file and serve any submissions and draft orders.
3. The application be referred to a judge for determination 'on the papers' not before 21 April 2020.
4. The parties' costs be reserved.

88 As mentioned above, it appears that paragraph 3 of the order of Daly AsJ (i.e. that the application be referred to a judge for determination 'on the papers') was made without opposition.

89 However, on 27 March 2020, Mr Knight wrote to an officer of the Supreme Court Registry with a request for an oral hearing, as follows:

Further to our telephone conversation this morning, please inform the Honourable Associate Justice Daly that I am unable to comply with her Honour's order made 19 March 2020. On 24 March 2020, the respondent closed the prison's education centre/library. I now have no access to computer and printing facilities. My repeated written and verbal requests to be granted the loan of a computer (as per the previous loan in 2017-18) have been ignored. I, therefore, ask for a further oral hearing. See attached request form.

90 The attachment was a copy of a prisoner request form in which Mr Knight had asked the General Manager of PPP for the following:

In the event of a prison lockdown, to be re-issued laptop computer containing files (and printer) in order to prepare submissions in criminal appeal and civil cases, and to prepare parole applications.

91 The form was signed on 22 March 2020. It was marked 'Not Approved' on 23 March 2020. The prison management endorsed the form 'Does not meet criteria for in-cell computer'.

92 In consequence, apparently, of Mr Knight's letter, the matter was referred back to Daly AsJ, on the Court's own motion. On Friday 3 April 2020, her Honour made the following orders, without appearances, on the papers:

1. The requirement for the applicant to file a summons be dispensed with.

1. Any affidavit and/or submissions by the proposed respondent showing cause why the applicant (subject to complying with relevant guidelines and policies regarding the use of in-house computers) should not be granted the use of an in-cell, non-internet enabled laptop for use in preparing for legal proceedings (civil and/or criminal) for the duration of the period in which the prison library is closed by reason of the COVID-19 pandemic be filed and served by 5.00pm on 17 April 2020.
2. Any affidavits and submissions by the applicant in reply be filed and served by 5.00pm on 24 April 2020.
3. The applicant's application for an in-cell computer be referred to Cavanough J for hearing and determination on 29 April 2020.
4. If the proposed respondent fails to file any affidavits or submissions pursuant to paragraph 2 of these orders, the orders foreshadowed by paragraph 2 of these orders may be made 'On the papers'.
5. There be liberty to apply.

93 I note that, although by paragraph 1 of that order the requirement for Mr Knight to file a summons was dispensed with, the fact remained that he needed leave under the VPA to make the interlocutory application envisaged by the order.[110] No such leave was granted to him by the order of Daly AsJ, nor has it otherwise been granted to him. Further, it appears that Daly AsJ was not made aware of the detailed letter dated the same day (Friday 3 April 2020) from Ms Sellman's solicitor to Mr Knight referred to below. In that letter, Mr Knight was advised, among other things, that the prison library would be re-opened the next week.

The re-opening of the prison library on 6 April 2020 and the effective lapsing of Mr Knight's application for leave to commence an interlocutory application for computer access in Knight v Sellman

94 On Monday 6 April 2020, the next working day after the making of Daly AsJ's orders, the library at PPP ceased to be 'closed'. It was re-opened under new conditions. As a result, the order made by Daly AsJ on 3 April 2020, which related exclusively to Mr Knight's application for leave to commence an interlocutory application for computer access within Knight v Sellman, fell away, as I will now explain.

95 On 9 April 2020 (well in advance of the date referred to in paragraph 2 of the order of Daly AsJ of 3 April 2020), a detailed affidavit of Patricia Sellman (with extensive exhibits) was filed. In paragraph 35 of the affidavit, Ms Sellman deposed that, whilst the PPP library was closed from 23 March 2020, it re-opened on 6 April 2020. Ms Sellman further deposed that the number of prisoners at the library at any one time was limited to three, and that prisoners had been encouraged to request their attendance at the library in advance. She further deposed that the roster during this arrangement increased the library access time for Gorgan Unit, which was Mr Knight's accommodation unit. In addition, Ms Sellman deposed that she had become aware on 7 April 2020 that Mr Knight had used a computer in the Government Functions area of the prison on 23, 24, 25, 27, 30 and 31 March 2020. She deposed that the length of time that Mr Knight used the computer varied, the shortest being 53 minutes and the longest, two hours and 25 minutes. In total, according to the affidavit, Mr Knight used this computer for almost 11 hours. Ms Sellman also deposed to usage by Mr Knight of the computer in the Government Functions area on 2, 3, 5, 6, 12, 13, 16 and 19 March 2020, prior to the closure of the library as an initial response to COVID-19. Mr Knight has not disputed any of these factual statements. Accordingly, the whole of the order made by Daly AsJ on 3 April 2020, in effect, lapsed. The entire order was premised on the prison library being closed due to the COVID-19 pandemic and Mr Knight having no other computer access. The order was directed solely to 'the period in which the prison library is closed' (see paragraph 2 of the order). When the library re-opened on 6 April 2020, there was no longer any work for paragraph 2 or any other part of the order to do. Further, the order of 3 April 2020 had been made without cognisance of the access that Mr Knight had in fact had to computer facilities both before and after the closure of the library on 23 March 2020 and without cognisance of the impending re-opening of the prison library.

96 It appears that both parties recognised that the application for leave to bring an interlocutory application had lapsed. As a result, Ms Sellman, in the balance of her affidavit and submissions of 9 April 2020, sought to meet the whole of the applicant's original application. On 27 April 2020, Mr Knight filed and served written submissions dated 24 April 2020 which responded in detail to the comprehensive material filed and served by Ms Sellman.

Decision to proceed to final determination on the papers

97 In those circumstances, it became apparent to me that it was not appropriate to proceed with a virtual hearing, or any other in-person hearing, on 29 April 2020. Accordingly, I made an order on that day vacating that hearing. I noted in 'Other Matters' that the application referred to in paragraph 4 of the order made by Daly AsJ on 3 April 2020 was now to be determined on the papers by me in due course. As I have already said, that application has, in effect, lapsed. Nevertheless, for the sake of tidiness, I will in due course determine it by dismissing it. That leaves the underlying proceeding itself as the matter remaining to be determined. As I have already indicated, in my view, the parties, including Mr Knight, have had ample opportunity to address the issues that arise in the underlying proceeding. Both parties, in effect, have taken full advantage of that opportunity by advancing the detailed materials to which I have referred. In those circumstances, having regard to what I have said already about the provisions and the policy of the VPA and taking into account also the very clear views that I have formed as a result of considering the materials advanced on both sides, it is appropriate that I now proceed to a determination of the underlying application in Knight v Sellman without inviting or calling for any further submissions. I should, however, set out in some detail the further matters relied upon by Ms Sellman and Mr Knight respectively.

98 In her affidavit of 9 April 2020, Ms Sellman deposes that she is the General Manager of PPP and has held that position since 26 July 2019. She holds an authority from the Department of Justice and Regulation to perform and carry out all of the functions, powers and duties of a Governor under the Corrections Act 1986 (Vic) and the Corrections Regulations 2019. The authority is issued pursuant to s 9A of the Corrections Act 1986 (Vic). Her role as General Manager of the prison is the same as the position of 'Governor' under the Act. She has extensive experience in correctional management, particularly in the United Kingdom.

99 As to Mr Knight, Ms Sellman deposes that he is a prisoner classified as a Major Offender and that his management is subject to regular review by the Major Offenders Unit (a department within Corrections Victoria, Department of Justice and Regulation). Ms Sellman occasionally attends those reviews in her current role. Ms Sellman is aware that Mr Knight is a declared vexatious litigant and that he maintains some applications to pursue legal matters. Mr Knight currently works as an Induction Billet within the Gorgan Unit, which, as already mentioned, is his accommodation unit.

100 Ms Sellman deposes that she has some awareness of Mr Knight's previous applications regarding access to computer and legal resources. She is aware that, in addition to various applications for an 'in-cell' computer, from time to time Mr Knight has also made applications to the Court regarding his access to legal resources (his own and those provided by PPP) and access to computer systems at PPP. She says that those matters sometimes resolve by engagement with the staff and management of PPP without Mr Knight pursuing them to determination by the Court.

101 Ms Sellman then notes that, most recently, Mr Knight had been unsuccessful in the abovementioned matter of Knight v Castle (S ECI 2018/03023) in seeking reinstatement of the access to an in-cell computer that he had had from 8 December 2017 to 18 January 2018.[111]

102 Ms Sellman then proceeds to provide an update on Mr Knight's current access to computer and legal resources at PPP.

103 Ms Sellman deposes that, from time to time, Mr Knight's access to either the PETES (educational) computer system at PPP and/or the dedicated laptop was restricted on the basis of Mr Knight being found to be in possession of contraband, including some in electronic format. This included, at times, pornographic images that were not permitted in the prison environment.[112]

104 In this regard, Ms Sellman refers to the first three of Mr Knight's abovementioned affidavits filed in Knight v Castle. She then refers to, relies on, and produces copies of two affidavits of Mr Castle that were filed in that proceeding in response to Mr Knight's first three affidavits. Mr Castle's affidavits were dated 25 January 2018 and 29 October 2018. In paragraphs 29 and 30 of Mr Castle's affidavit of 25 January 2018 and in paragraphs 13 to 18 and 25 to 26 of Mr Castle's affidavit of 29 October 2018, Mr Castle gave particulars of the discovery of contraband, and the commission of a prison offence, by Mr Knight in April 2017 which resulted in a ban by Corrections Victoria on Mr Knight's access to the PETES computer system at the prison for a period of 12 months from 25 May 2017. The ban was lifted on 15 May 2018, but on 25 May 2018, further contraband on USB was located in Mr Knight's cell. This led to the police charging Mr Knight with offences under the Corrections Act 1986 (Vic). As a result, the ban on Mr Knight's access to the PETES system was reinstated on 6 June 2018 and it remained in place as at the time of the swearing of Mr Castle's affidavit of 25 October 2018. In addition, the CD drive on the computer was disabled to ensure that the laptop should have no access to removable storage devices.

105 Ms Sellman deposes that Mr Knight had been given temporary access to the laptop for the period when the prisoner computer systems at PPP were 'offline' following the major fire at PPP (on 29 November 2017). Mr Knight's access to a laptop for the period 8 December 2017 to 16 January 2018 included access while in his accommodation unit and cell. Because of Mr Knight's classification as a Major Offender, the provision of the laptop on an 'in-cell' basis required approval from Corrections Victoria's then Deputy Commissioner, Custodial Services, Mr Wise.

106 Ms Sellman further deposes that, following the 'reinstatement' of the prisoner computer system at PPP,[113] from 16 January 2018 until about 21 November 2019, Mr Knight had access to a dedicated laptop computer held at the PPP library. He was no longer able to retain the laptop in his unit or cell. The conditions of his access to the dedicated laptop were set out in two documents:

1. titled Computer Access - Julian Knight, signed 16 January 2018; and

1. a modified agreement entitled Computer Access for Legal Preparation, agreement signed and commencing on 29 October 2018.

Copies of those two documents are exhibited to Ms Sellman's affidavit.

107 Therefore, Ms Sellman deposes, in the period from 8 December 2017 until about 21 November 2019, Mr Knight's access to the laptop dedicated for his use varied. In the period immediately before 21 November 2019, Mr Knight's access to the dedicated laptop was during his allocated or approved library time and in accordance with the agreement of 29 October 2018. As Mr Castle had deposed, the CD drive on the laptop was disabled at the direction of Corrections Victoria (supported by Mr Castle) for security reasons to ensure the laptop should have no access to removable storage devices.[114]

108 Ms Sellman deposes that a decision was made in November 2019 to withdraw Mr Knight's access to the dedicated laptop. She says that the decision was made taking into account a number of factors. While the computer was not an 'in-cell' computer, Mr Knight did not meet the criteria for a personal computer under the applicable Commissioner's Requirement. The provision of a laptop dedicated solely for Mr Knight's use, that was retained in the relevant office for use in the library/education area, was not a permanent arrangement. Ms Sellman considered that it required an assessment and that it was subject to review by her, as the General Manager of PPP, or by her delegate in the first instance. Ms Sellman deposes that she was conscious that Mr Knight should be treated as other prisoners would be treated in the same or similar circumstances. It was, in Ms Sellman's view, an indulgence to provide Mr Knight with a dedicated laptop owned by the private operators of the prison (G4S), when other prisoners are required to pay for or borrow a computer or to complete their work on the prisoner computer system. It was removing a resource that could be put to other use within PPP. Therefore, its ongoing use needed to be justified. Ms Sellman took into consideration the relevant security aspects. She formed the view that Mr Knight ought to be able to attend to his legal matters during his allocated and approved library time where he could access the prisoner computer system. The library computer has electronic legal resources from ANSTAT. Mr Knight could have access to those resources up to four hours per week. Ms Sellman understood that, in addition to the work on his legal matters, Mr Knight also used the laptop to attend to other activities even though it was not provided for that purpose.[115]

109 Ms Sellman then refers to the abovementioned letter from the Prothonotary of the Supreme Court to Mr Knight dated 17 December 2019 which set out Mr Knight's legal matters then pending before the Supreme Court. As to those matters, Ms Sellman said that:

1. Subsequently, Knight v Castle (S ECI 03023) was dismissed by the Honourable Justice Moore.
2. As to the three proceedings filed in 2013, the State maintains that those applications are futile following a High Court determination.
3. In relation to Knight v The Queen (S ECI 2018 03025), Mr Knight's submissions are to be filed with the Court within 28 days after the determination of this matter (Knight v Sellman).
4. The other matters referred to in the letter as pending remain pending awaiting further order of the Court.[116]

110 Ms Sellman then deposes that she understands that Mr Knight is involved in the following separate matters:

1. An FOI matter in VCAT. Ms Sellman does not know the status of that matter. She understands that at present due to the COVID-19 pandemic VCAT has adjourned all non-urgent matters.
2. Two FOI matters in the Commonwealth Administrative Appeals Tribunal which have been consolidated. Ms Sellman is not aware of the current status of the consolidated matter but understands that due to the COVID-19 pandemic AAT has also modified its processes to manage existing matters although they are continuing to be processed where possible.
3. A UN human rights complaint referred to in correspondence attached to Mr Knight's affidavit dated 21 January 2020 (Exhibit JK-18). In that matter, Mr Knight is legally represented.

111 Next, Ms Sellman notes[117] that Mr Knight wrote to Corrections Victoria about his access to a computer, including his access to the laptop, as well as about legal resources and the printing of documents, in letters dated 1, 12, 19 and 28 January 2020. By letter dated 7 February 2020 Andrew Reaper, Acting Deputy Commissioner, Custodial Operations, Corrections Victoria responded to those letters. Within that response, Mr Reaper confirmed that Mr Knight was not approved for an in-cell laptop. A copy of the letter from Mr Reaper dated 7 February 2020 is exhibited. The letter refers to Mr Knight's reliance upon his then current legal matters (as well as his then current engagement in English and Information Technology education courses). In that regard, the following two paragraphs of Mr Reaper's letter should be noted:

While I note that you appear to have requested leave out of time to appeal against your conviction and sentence in the Supreme Court, it is yet to be established that you intend to pursue such an appeal. Additionally, your civil matters do not meet the eligibility criteria for computer applications made on legal grounds as per Commissioner's Requirement 2.1.2 - Prisoner Computers. Inquiries with the Education Coordinator reveal that access to a computer is not necessary for the homework assigned in your English course, and that course work involved with your IT course can be completed in class or using the PETES computers available in the library outside of class.

Despite the fact that your application for an in-cell computer has not been supported, I appreciate that you may have a need to save documents in relation to your civil matters and proposed proceeding. I suggest that you write to Ms Sellman and formally request access to one (or both if considered necessary) of your USBs that were placed into your stored property in July 2019, for the purpose of saving your computer documents. This will, of course, be subject to Ms Sellman's determination.

112 Turning to the steps taken by the parties in the course of Knight v Sellman after Ms Sellman became involved in it, Ms Sellman deposes that she is informed and believes that on 3 March 2020 Mr Knight informed the Court that he would withdraw the leave application in the event he had access to all files from the laptop.[118]

113 Ms Sellman goes on to say[119] that on or about 11 March 2020 Mr Knight was informed that his files from the laptop had been saved to two disks, a data disk and an images disk. Mr Knight was informed that the files on the laptop would not be deleted until he checked the disks. This was to ensure that all the files had been saved to the two disks. He was to be provided with the data disk. The images disk was to be held by Deputy General Manager Ali Assafiri for Mr Knight to access on request. Ms Sellman exhibits a copy of an email from her solicitor, Ms Nunnink, dated 11 March 2020 ('PS-4') which appears to confirm that Mr Knight was given this information by a letter from Ms Nunnink on the same day, with the letter including a suggestion for the adjournment of the directions hearing that was listed for the following day (12 March 2020).

114 Ms Sellman deposes[120] that, in accordance with the proposal of 11 March 2020, Mr Knight was provided with the disk containing the data files that were retrieved from the laptop. The disk containing images was retained by Mr Assafiri, with Mr Knight free to request access to it. The reason for this was that the images on the disk included some graphic and disturbing images of the crime scene and autopsy photographs of the victims of Mr Knight's crimes.

115 Next,[121] Ms Sellman refers to a letter from Mr Knight to Ms Nunnink dated 12 March 2020 in which Mr Knight complains about his computer account being divided between two disks. In the letter ('PS-5'), Mr Knight asserts that he previously had had access to all of the files in his computer account. He takes issue with a statement in the letter from Ms Nunnink dated 11 March 2020 that Mr Assafiri would retain the images in accordance with 'the previous arrangement for access to those images'. In the letter, Mr Knight asserts that there was no 'previous arrangement for access to' the images. On that basis, Mr Knight asserts in the letter, he did not consider the matter to be settled. He asserted that by withholding files PPP also made it impossible to verify that all the files in his computer account had been copied.

116 Ms Sellman then deposes[122] that, as at 17 March 2020, a prison manager (Dawn Gilbert) had confirmed that Mr Knight had not expressed any concerns with the data disk and that he had access to the library in the interim period. Ms Sellman further says that she also became aware on 7 April 2020 that, in addition to this library time, Mr Knight had had access to a computer in the Government Functions area of PPP on several days during March 2019. I have already recounted what Ms Sellman deposed to in her affidavit in relation to those occasions of computer access on the part of Mr Knight.

117 Ms Sellman then said[123] that Ms Gilbert had arranged for Mr Knight to have time to cross-reference the data in the separate images disk to the laptop to ensure that all files saved to the laptop were contained on the two disks.

118 Next, Ms Sellman deposes[124] that, in relation to the crime scene and autopsy photographs, she understood from Ms Gilbert that Mr Knight had in his possession a set of printed copies of the photo images as well as a USB containing those images.

119 Ms Sellman then[125] refers to the abovementioned letter dated 3 April 2020 from her solicitor to Mr Knight ('PS-6'). That letter, in turn, referred to the terms of the orders sought in the original application in Knight v Sellman, in particular the implicit suggestion therein that Mr Knight had had unchanging access to the laptop between 8 December 2017 and 21 November 2019. The letter noted that, in fact, the arrangements for access changed within that period. The letter further noted that Mr Knight had confirmed in Court on 3 March 2020 that his leave application would be withdrawn if he were given access to all files from the laptop. Since then, according to the letter, Mr Knight had been provided with a disk containing the data files that were retrieved from the laptop, and Ms Gilbert was arranging for Mr Knight to have time to cross-reference the data in the separate images disk to the laptop to ensure all files saved to the laptop were contained on the two disks. The letter confirmed that the laptop would not have any files deleted until Mr Knight had checked the disks.

120 It was further asserted in the solicitor's letter of 3 April 2020 that the proposed arrangement that access to the images disk would only be through Mr Assafiri was in accordance with a previous arrangement that had been deposed to in the abovementioned affidavit of Mr Castle dated 29 October 2018.[126] The letter stated that, in any event, since that time, Mr Knight had obtained and retained a set of printed copies of the photo images as well as a USB containing those images, in addition to the copy of the images saved to the laptop. It was asserted in the letter that it would therefore seem that Mr Knight was able to continue his work on his submissions in Knight v The Queen. The letter further stated that, in the event that the Supreme Court confirmed in writing to Mr Knight that the Court required a copy of any of the photos, and Mr Knight required assistance to produce them, Mr Knight could request that assistance from Ms Gilbert or Mr Assafiri. The letter advised Mr Knight that, although the prison had been in partial lockdown due to the COVID-19 pandemic, access to the library would be reinstated the next week.[127] It was then asserted in the letter that it therefore appeared that Mr Knight would have access to the images effectively to the same degree as when the laptop had been available to him during library hours. It was noted that, on that basis, Ms Sellman had determined that Mr Knight would not be given possession of the images disk and that the disk would remain with Mr Assafiri for Mr Knight to request access to if and when that became necessary. It was further stated in the letter that if there were images that were not crime scene or autopsy photos on the images disk, and if those images were not otherwise prohibited, Mr Knight could identify those images and obtain approval to transfer them to the data disk. The letter concluded with a statement that, in the circumstances, it was considered that Mr Knight had access to all the data that was saved to the laptop, that his application to the Court would fail, and that it ought to be withdrawn.

121 Ms Sellman deposes[128] that, at the time of swearing her affidavit (9 April 2020), Mr Knight had not provided a letter or other document from the Supreme Court to the effect that the Court required photographs of the crime scene or autopsy photographs.

122 Ms Sellman then says[129] that if the images disk were to be provided to Mr Knight, the disk would be required to be retained by correctional staff and stored in the same location as the laptop, to mirror the arrangements prior to the removal of the laptop in November 2019.

123 Next,[130] Ms Sellman deposes that PPP is on a partial (50/50) lockdown due to COVID-19. That is, 50 per cent of prisoners are out of their cells at any one time. Mr Knight currently has six hours out of cell per day.

124 Ms Sellman then turned to the matters which I have already recounted above, namely the reopening of the library on 6 April 2020 and the discovery of the instances of access by Mr Knight to a computer in the Government Functions area of the prison during March 2020.

125 The last three paragraphs of Ms Sellman's affidavit represent a summary of her reasons for contending that leave to proceed should not be given. Those paragraphs read:

1. Mr Knight has access to papers and hard copy legal documents which he can have in his cell (subject to cell fire load requirements) and in his property store at PPP;
2. Mr Knight has the data disk of files transferred from the laptop;
3. Mr Knight has access to photographs/images that include of the crime scene and autopsy photographs both in hard copy format and on a USB which enables him to work on his submissions [in] S ECI 2018 03025 and he can request access to/printing of images from the images disk, for the Court in the event the Court requests them;
4. Mr Knight is able to review documents he has printed and documents he has been sent relating to his legal matters in his cell and during lockdown time;
5. Mr Knight is able to access prisoner computers and legal resources during his Unit's allocated library time which are rostered for certain periods of time each week;
6. Mr Knight can arrange for his documents to be printed during his attendances at the library;
7. Mr Knight can request access to the library time during the partial lockdown of PPP due to COVID-19;
8. All files on the laptop are being retained until Mr Knight has reviewed the transfer of files; and
9. Other steps are in place to confirm and transfer any non-offensive images from the images disk to the data disk even though this may not be related to Mr Knight's work on legal applications;

Then it is my view that the current arrangement is effectively the same as Mr Knight's level of access when he was able to access the laptop during library times and according to the Computer Access for Legal Preparation - Agreement signed 29 October 2018. Further, as Mr Knight has hard copy and USB versions of the images, I do not consider it necessary for him to also be provided with the images disk to complete his legal work on application S ECI 2018 03025. I also consider that to have a further disk of those images in Mr Knight's possession creates a further security risk.

1. It appears to me that Mr Knight is readily engaging with the Court in order to progress his legal matters.
2. The decisions around Mr Knight's computer/library access requirements have taken into account information known to me about the status of his outstanding legal matters.
3. I do not consider that Mr Knight requires greater access to a computer, or the previously provided laptop computer that he could use during his Unit's library hours or other approved times.

126 I turn now to Ms Sellman's written outline of submissions dated and filed 9 April 2020.

127 In the outline, Ms Sellman relies on her affidavit of the same date.

128 Ms Sellman submits that under ss 20 and 21 of the Corrections Act 1986 (Vic) she is required to take steps to ensure the security of the prison and the safety and welfare of the prisoners, and that she is responsible for the management and good order of the prison.

129 Ms Sellman notes the terms of the orders which Mr Knight seeks leave to claim. (As indicated above, the orders sought are expressed in the alternative. The second alternative relates to the files only). Ms Sellman submits that Mr Knight informed the Court on 3 March 2020 that the leave application would be withdrawn in the event that he had access to all files from the laptop.[131]

130 Under the heading 'The decision to remove the laptop', it is noted that Ms Sellman had deposed that the decision to remove access by Mr Knight to a dedicated laptop computer was based on a range of considerations, including a belief that Mr Knight had sufficient access to computer facilities to fulfil his legal requirements and to afford him reasonable access to the Court.

131 In paragraph 5 of the outline, it is noted that Ms Sellman had also deposed that in the period between November 2019 (when the decision was made to withdraw the use of the dedicated laptop) and 9 April 2020 (when the affidavit was sworn), prison operations changed as a result of the COVID-19 pandemic. Nevertheless, Ms Sellman considered that Mr Knight did have adequate access to computer facilities at PPP under the revised regime. Ms Sellman had deposed to information relating to Mr Knight's access to data and images that were stored on the laptop. In particular, Mr Knight was being given an opportunity to ensure that all data on the laptop had been saved onto disks. He had been given one of the disks. The other he could access on request. Further, Ms Sellman had deposed to Mr Knight having at his disposal the images that were contained on the laptop, namely the images from his 1988 criminal matter, including photographs of the crime scene and of the autopsies of his victims. On that basis, it is submitted in the outline that Mr Knight does have access to the files that were contained on the laptop largely to the same degree he did until February 2020, and that he can access those materials to complete his submissions for the Court in the leave application to reopen his conviction.

132 In any event, the outline continues, for the reasons about to be mentioned, the application should not have been brought (or should not have been brought in the manner that it was).

133 Under the heading 'Legal Requirements', the outline asserts[132] that the present application is subject to the regime set out in the (2014) Act and that, in consequence:

(a) Mr Knight requires leave to bring the 'proceeding' (as defined): s 30;

(b) the 'proceeding' is presently of no effect: s 32(b);

(c) Mr Knight requires leave to commence the proceeding in accordance with Division 3 of Part 8 of the Act;

(d) Mr Knight is required to disclose certain matters on affidavit: s 56;

(e) if the Court considers that the application for leave should proceed, certain parties, including the Attorney-General, must be given notice: s 60;

(f) any party given notice in accordance with s 60 must be given the opportunity of being heard on the application: s 62; and

(g) any application for leave is subject to a particular regime for the determination of the application: s 63.

134 In paragraph 9 of the outline, it is submitted that, in any event, there was and is no basis for the grant of the injunction sought by Mr Knight. In sub-paragraphs (a) to (m) (inclusive) of paragraph 9, a series of points is made in support of that submission, as follows:

(a) Mr Knight is not entitled to a laptop (whether an in-cell computer or pursuant to the previous arrangement where he could use the laptop during his library access time) as a right under the Corrections Act 1986 or at common law.

(b) Mr Knight has had repeated applications seeking similar relief dismissed by this Court.[133]

(c) Whether Mr Knight's common law right of unimpeded access to the Court is being infringed is an objective test.[134]

(d) The onus is on Mr Knight to establish that he is being prevented from accessing the Court or it is, or will be, impossible for him to present his case.[135]

(e) The question is not what is easier or most convenient for Mr Knight in the conduct of his various litigation.[136]

(f) Mr Knight has access to all of the necessary court documents and data/documents that were saved to the laptop[137] and that access is largely the same as it was when he had access to the laptop during library hours.

(g) Mr Knight had and still has access to computer facilities during library hours.[138] He also accessed, for a period including when the library was closed due to COVID-19, a computer in Government Functions.[139]

(h) Specifically with respect to Supreme Court application S CI 2018 03025, which is Mr Knight's application for leave to appeal a criminal conviction, at the time of these submissions, there is no evidence that Justice Richards requires Mr Knight to produce copies of crime scene or autopsy photographs to the Court, and Mr Knight has access to those items in hard copy and on USB so he is able to progress his submissions in that matter.[140]

(i) With respect to [the three applications of 2013], the State maintains those applications remain futile following a High Court determination. There are current orders for Mr Knight to file court documents in May and August respectively. All [of Mr Knight's other] applications for leave before the Supreme Court are pending a determination and await further order.[141]

(j) With respect to Mr Knight's matters in other jurisdictions, the Court can take judicial notice of the interruption and suspension or adjournment of legal matters in light of the COVID-19 pandemic.

(k) There is no evidence that Mr Knight is being, or will be, prevented from accessing the Court or that it is, or will be, impossible for him to present his case. This application is evidence to the contrary.

(l) Whether any future computer access regime would have the effect of preventing Mr Knight from accessing the court is a matter of speculation that cannot be resolved in this application on the present evidence.

(m) The judge or court seized of any pending proceeding will be best placed to deal with any complaints that Mr Knight has about his ability to conduct his litigation.[142]

135 In paragraph 10 of the outline, Ms Sellman submits that there has been no breach of the Corrections Act 1986 (Vic) or the Corrections Regulations 2019 in relation to the withdrawal of the dedicated laptop for Mr Knight's use during library or other approved times.

136 Finally, in paragraph 11, it is submitted that it is well established that courts should carefully observe the limits of their jurisdiction, and recognise that '[t]he management of prisons is a particularly difficult and sensitive task involving complex practical considerations and security implications with which the Court is not familiar and which it is difficult for the Court to understand or fully appreciate from the comfort of the court surroundings'.[143] It is submitted that the Court should not become involved in the rights and wrongs of a decision of prison authorities concerning a prisoner that complies with the relevant Act and regulations.[144]

137 On the afternoon of 28 April 2020, a document entitled 'Written submissions of applicant dated 24 April 2020' was filed in the Court.[145]

138 In his written submissions,[146] Mr Knight relies upon his Form 83E and his affidavit in Knight v Castle (S ECI 2018/03023) sworn 21 January 2020. I have already referred to each of those documents in detail.

139 In paragraph 2 of the written submissions, Mr Knight says that he is unable to swear a further affidavit because of logistical problems that he lists. In the circumstances, insofar as the document contains any assertions of fact, I am prepared to treat those assertions as though they were contained in a duly completed affidavit.

140 In the written submissions Mr Knight addresses separately and in detail, first, Ms Sellman's affidavit and, second, Ms Sellman's written outline of submissions. As I have done in relation to Mr Knight's affidavit of 21 January 2020, I will recount what Mr Knight says in his submissions, adding certain separately identifiable comments of my own either in the text of the judgment or in the footnotes.

141 As to Ms Sellman's affidavit, Mr Knight responds as follows.

142 To Ms Sellman's statement that Mr Knight is a declared vexatious litigant, Mr Knight says that he is only a vexatious litigant in the State of Victoria. He says that he has litigated in the ACT and in the Federal jurisdiction, has two cases awaiting hearing in the AAT,[147] and is preparing a claim to be filed in the Federal Court of Australia in relation to the termination of his service in the Australian Army.[148]

143 In relation to what Ms Sellman had said about Mr Knight's prior applications regarding access to a computer, Mr Knight responds that he has lodged over 30 separate applications since August 2006 to access a personal 'in-cell' computer on legal, educational or personal needs grounds, or a combination of these grounds. He says that the majority of these applications have been for permission from Corrections Victoria for him to purchase a computer with his own funds. He says that the remainder have been to have a loan of a prison-issue computer or some other form of temporary access. He says that the first application was made on 24 August 2006 and that the last application was made on 31 December 2019. He says that all of these applications have been refused.[149] He says that, during this 14 year period, hundreds of prisoners in Victoria have been granted access to a personal 'in-cell' computer.[150] He says that some of these prisoners, including high profile prisoners convicted of murder (i.e. Craig Minogue and Hugo Rich), have had access to a personal 'in-cell' computer for the entire 14 years and continue to have access to a 'in-cell' computer.[151]

144 As to Ms Sellman's evidence about Mr Knight being found with contraband, including some in electronic format, Mr Knight says[152] that there was no misuse of the laptop computer that he had access to from 8 December 2017 to 21 November 2019, and thus that no restrictions were placed on its use.[153] He says that this computer was provided on an 'in-cell' basis for the first five weeks and that it was subjected to regular audits by G4S IT technicians during this two year period. As to what Ms Sellman said in paragraph 17 of her affidavit relating to the access Mr Knight had to a dedicated laptop from 16 January 2018 until about 21 November 2019, Mr Knight says,[154] in substance, that as from 16 January 2018, the prisoner computer system at PPP was not in the same state as it had been prior to the fire. Mr Knight describes the old system, mentioning in particular that he was one of several prisoners at PPP who had a personal account on the old system; that the files from this account were copied onto a DVD on 8 December 2017; that a printer was also attached to the library computer server for prisoner use under the former regime; that the printer was removed; that prisoners' printing is now done by the prison's education coordinator after the documents have been examined by the prison's security officers; that the computer accounts of the prisoners remain on the computer server but are no longer accessible by prisoners; and that the current computer system in the library has been programmed to automatically delete any saved files twice a day. Mr Knight notes the references in the abovementioned email exchange of 7 December 2017 to the purpose of providing (temporary) 'in-cell' computer access to Mr Knight being to enable him to prepare for legal cases. He points out that some of the cases referred to in that email exchange are those that have been listed for hearing this year.[155] Mr Knight mentions that none of the legal cases or court cases referred to in the email exchange of 7 December 2017 was a criminal matter.

145 As to Ms Sellman's statement that Mr Knight's access to the laptop varied between 8 December 2017 and 21 November 2019, Mr Knight asks rhetorically why that should have been so when he was still preparing for the same court cases in 2019 and is now preparing for more cases than he was in December 2017. He describes one of these cases as an application for leave to appeal conviction and sentence.[156]

146 In response to what Ms Sellman says in paragraph 20 of her affidavit about the decision made in November 2019 to withdraw access to the dedicated laptop taking into account a number of factors, Mr Knight makes a series of points.[157] Mr Knight first comments on Ms Sellman's reference to the applicable Commissioner's Requirement. He asserts that, originally, the corresponding Commissioner's Requirement made no distinction between criminal cases and civil cases in terms of the eligibility of a prisoner for access to an in-cell computer. He asserts that this changed after the decision of the Court of Appeal in Commissioner, Corrections Victoria v Knight[158] in 2010. Mr Knight foreshadows making yet another application for leave to commence a proceeding - this time the cause of action, he says, would be the inclusion in the current Commissioner's Requirement of the statement that access to an in-cell computer for outstanding civil matters will only be approved in exceptional circumstances.[159]

147 Next,[160] Mr Knight comments, in effect, that he would be keen to pay for or borrow a computer like 'other prisoners' if he were permitted to do so. Indeed, he says, in that event he would automatically seek to discontinue the present application and what he describes as the proposed proceeding relating to the Commissioner's Requirement.

148 Next,[161] Mr Knight asserts that the laptop computer in question has not been used since it was last used by him on 21 November 2019.

149 Mr Knight goes on to assert[162] that the electronic legal resources available to prisoners on the PPP library server are much diminished now as compared with what was available prior to the 2017 fire.

150 Next,[163] Mr Knight says that, prior to the closure of the PPP library on 24 March 2020, he had access to the library for around five hours per week. He says that, following the reopening of the library on 6 April 2020, he can now access the library for around three hours per week.

151 In paragraph 22 of his written submissions, Mr Knight observes that the PPP library was closed on 24 March 2020 as an anti-COVID-19 measure. He then asserts that the reason why the PPP library was reopened on 6 April 2020, 'in spite of the ongoing Coronavirus pandemic', was to defeat the instant proceeding and to defeat two other proceedings brought by another prisoner at PPP.[164] In my view, this extraordinary and outlandish assertion can be given no credence whatever.

152 In paragraph 23 of his written submissions, Mr Knight seems to take issue with what Ms Sellman says about the laptop not being provided to Mr Knight for 'other activities' aside from work on legal matters. Mr Knight does not provide any basis for taking issue on that point except to say that activities such as correspondence, diary entries and personal records are activities normally associated with personal computer use. He says that the existence of these 'other activities' only serves to further restrict the time he has to attend to legal preparation.

153 Next,[165] Mr Knight turns to some aspects of what Ms Sellman deposed to in paragraph 21 of her affidavit relating to the state of Mr Knight's legal matters currently before the Supreme Court. Notably, as already mentioned, Mr Knight does not respond to Ms Sellman's proposition that the State of Victoria maintained that the three applications of 2013 were futile. Rather, Mr Knight merely notes that, in addition to being required to file written submissions in the three matters filed in 2013, he now has 28 days from judgment in Knight v Sellman to file written submissions in Knight v The Queen. He says '[i]f relief is not granted in the instant proceeding, the applicant will take the advice of the respondent contained in paragraph 9(m) of the Respondent's Outline of Submissions, and seek the same relief from the Honourable Richards J'. As I will explain in due course, that comment happens to reflect one of the reasons why Knight v Sellman should not be permitted to proceed any further. The same can be said about Mr Knight's comment in the next paragraph of his written submissions:

If the applicant was provided with the opportunity to file a single unhurried, unhindered and properly prepared application for leave to appeal conviction and sentence, then there would be no need or opportunity to continually re-file applications for leave.[166]

154 In paragraph 26 of his written submissions, Mr Knight comments on the letter from Acting Deputy Commissioner Andrew Reaper dated 7 February 2020 referred to in Ms Sellman's affidavit. Mr Knight submits that the letter from Mr Reaper confirms:

(a) that prisoners at PPP 'no longer have individual computer accounts to save personal documents on the library servers';

(b) that prisoners who 'have a need to save non-educational, legal or confidential documents... may apply for a USB' (even though these devices have proven to be faulty - see attached screen print);[167]

(c) that prisoners who are eligible 'may apply to purchase a personal computer';

(d) that despite Mr Reaper acknowledging that Mr Knight has what Mr Knight calls 'a belated appeal against conviction and sentence',[168] it is considered that Mr Knight's 'civil matters do not meet the eligibility criteria for computer applications made on legal grounds as per Commissioner's Requirement 2.1.2 - Prisoner Computers'; and

(e) that if Mr Knight has 'a need to save documents in relation to [his] civil matters and proposed proceedings', he may apply for access to the two USB storage devices in his property (access was granted to these devices on 17 February 2020).[169]

155 In paragraph 27, Mr Knight turns to the statement by Ms Sellman[170] that on 3 March 2020 Mr Knight informed the Court that he would withdraw this leave application in the event that he had access to all files from the laptop. It is desirable to set out verbatim Mr Knight's response to this, because it is very telling against the present application. Mr Knight says:

In response to paragraph 24, the applicant's access to all of his files contained on the laptop computer he had access to is the crux of the cause of the action in the instant proceeding. The respondent has made a unilateral and unprovoked decision to restrict access to files that the applicant previously had unfettered access to. This restriction has not been placed on any other prisoner. The justification given for the new restrictions is grounds for granting access to a personal 'in-cell' computer (see below at paragraphs 29 and 53).[171]

I note again that, according to Mr Castle's affidavit of 29 October 2018, which Mr Knight has not addressed in Knight v Sellman, the images of the crime scene and the autopsies used to be kept separately in Mr Castle's office and Mr Knight could only have access to them on request. Hence, contrary to paragraph 27 of Mr Knight's written submissions, the present position does not appear to be significantly different from the position in the past.

156 The next paragraph of Mr Knight's written submissions demonstrates yet again how unworthy of the time and attention of the Supreme Court of Victoria the application in Knight v Sellman is or has become. I will set it out verbatim, because it speaks for itself:

In response to paragraph 25, the respondent states that the images disk (containing the photographs contained in the applicant's Hand-Up Brief) is 'held by Deputy General Manager Ali Assafiri for [the applicant] to access on request'. The respondent does not detail how this request is to be processed or how access is to be facilitated.[172]

157 In paragraph 29 of his written submissions, Mr Knight notes the concern expressed by Ms Sellman[173] about the graphic nature of the crime scene and autopsy images in question. However, Mr Knight tries valiantly to turn this to his advantage by suggesting that it would be a reason for granting him access to an in-cell computer. He refers to the Commissioner's Requirement 2.1.2: Prisoner Computers in so far as it states:

An in-cell computer might be necessary because - for applications on legal grounds: the material on those disks might be distressing if viewed by other prisoners in a communal area, or may impact on the prisoner's safety, or constitute a breach of privacy if viewed by others.

158 Paragraph 30 of Mr Knight's written submissions is another paragraph that should be set out in full. It demonstrates, of itself, how inappropriate it would be for Mr Knight's complaints about access to the images disk to be entertained by this Court by way of the proceeding proposed in Knight v Sellman, as distinct from their being entertained (if at all) as part of an application by Mr Knight for leave to commence an application for leave to appeal against conviction and sentence out of time. Paragraph 30 reads:

The applicant's Hand-Up Brief contained 356 victim identification, crime scene and/or autopsy photographs in two books (containing 324 & 30 photographs). These photographs were originally provided to the applicant in hard copy form in 1988. These photographs were later returned to the applicant's solicitor at the Legal Aid Commission of Victoria (now Victoria Legal Aid). It should be noted that the majority of the 356 photographs contain images of locations or of damaged vehicles. In 2014, after the law was changed to remove the applicant's parole eligibility,[174] the applicant was provided with the entire contents of his VLA case file on CD and DVD. The two books of photographs were provided as two PDF documents. During the period that the applicant had access to the laptop computer on an 'in-cell' basis, he began the process of converting these PDF documents into individual images. This process was incomplete when access to the computer was changed from an 'in-cell' basis to access in the communal environment of the prison library. The basis of the applicant's repeated applications to access a computer on an 'in-cell' basis was to complete this process.[175] Part of the applicant's appeal against conviction is based on forensic evidence (including photographic evidence) that at least one of the applicant's victims was shot directly, but that the applicant made no concessions in relation to that victim which in turn supports a claim of non-insane automatism.[176]

159 In paragraph 31 of his submissions, Mr Knight asserts that the 'restrictions' now placed on his access to the photographic evidence from the Hand-Up Brief have never previously been placed on him.[177] He says that they are restrictions that have not been placed on any of the other 1100 prisoners at PPP, including the many who are serving sentences for, or who have been charged with, murder and other violent offences. He says that PPP is a maximum security prison containing adult male prisoners.

160 As to Ms Sellman's evidence that the prison manager Dawn Gilbert had arranged for Mr Knight to have time to cross-reference the material on the two disks as against the laptop, Mr Knight says[178] that he was provided with the data disk on 13 March 2020. He says that on 8 April 2020 he was given access to the laptop computer in order to verify that the data disk contained all of the data files from his account on the laptop computer. He says that he was not provided with access to the images disk at that time. He says that access to the images disk was 'eventually' provided to him at PPP's Government Functions building on 20 April 2020. He says that he can now verify that he previously had access to all of the images contained on the images disk.[179]

161 In paragraph 33 of his written submissions, Mr Knight asserts that, contrary to paragraph 30 of Ms Sellman's affidavit, he has not told Ms Gilbert that he has in his possession a set of printed copies of the photo images as well as a USB containing those images. He says that he does not have those things in his possession. He does not explain what he means in that regard. His statement leaves open the interpretation that he has a set of printed copies or a USB, but not both. Or he may be making a subtle point about what amounts to his possession. I note that the evidence indicates that the USB would be stored on his behalf in his property. In any event, it is idle for Mr Knight to take such points in relation to this application.

162 In response to paragraph 31 of Ms Sellman's affidavit, which refers to the exhibited letter from the solicitor, Ms Nunnink, dated 3 April 2020 in which, in turn, it was asserted on behalf of Ms Sellman that Mr Knight had in his possession a set of printed copies of the images as well as a USB containing those images, and in which an offer was made to Mr Knight that, in the event that the Court confirmed in writing that the Court required a copy of any of the photos, and Mr Knight required assistance to produce such copies, he could request that assistance from Ms Gilbert or Mr Assafiri, Mr Knight responds as follows in paragraph 34 of his written submissions:

In response to paragraph 31, the applicant originally sought to attach a selection of crime scene and autopsy photographs as an exhibit to his supporting affidavit in the matter of Knight v Castle (S ECI 2018 03023). This proceeding was filed on 19 February 2018, and sought interlocutory relief with respect to the applicant's access to computer facilities for the purpose of legal case preparation.[180] The relevant exhibit contained a cover page (see attached) that warned that the following pages contained graphic photographs. The purpose of providing these photographs was to support a claim for relief based on the relevant criterion in Commissioner's Requirement 2.1.2: Prisoner Computers as outlined in paragraph 29 above. In the event, the Honourable Moore J dismissed the applicant's proposed proceeding on 17 February 2020 (Knight v Castle [2020] VSC 45) without needing to examine the photographs attached to the applicant's affidavit. It is not for the Court to confirm in writing 'that the Court requires a copy of any of the photographs' in relation to submissions being made in any future proceeding (ie the applicant's appeal against conviction and sentence).[181] To uphold this submission by the respondent is to hold that the respondent will only permit the applicant to put material before the Court if the Court asks in writing[182] to see that material in advance of seeing or hearing the submissions to which the material relates.

In response to Ms Sellman's statement in paragraph 32 of her affidavit that Mr Knight had not at that time provided a letter or other document from the Court to the effect that the Court required photographs of the crime scene or autopsy, Mr Knight comments, in paragraph 35 of his written submissions, that it is not for him to provide such a document. He submits that the Court 'cannot rule on the validity of evidence it has not seen'. These paragraphs (34 and 35) of Mr Knight's own written submissions go far to demonstrate why Mr Knight's application in Knight v Sellman is misdirected.

163 In paragraph 36, Mr Knight responds to the statement in paragraph 33 of Ms Sellman's affidavit to the effect that if the images disk were to be provided to Mr Knight the disk would be required to be retained by correctional staff and stored in the same location as the laptop in order to mirror the arrangements prior to the removal of the laptop in November 2019. As to this, Mr Knight asks rhetorically, 'Why not continue providing access to the laptop itself?'.[183]

164 Next,[184] Mr Knight says that prisoners are normally out of cell at PPP for 11.5 hours per day but that they are 'currently' out of their cell for four hours per day. This does not directly rebut Ms Sellman's statement that Mr Knight (as distinct from other prisoners) 'currently' (i.e. as at 9 April 2020) has six hours out of cell per day.[185]

165 In paragraph 38 of his written submissions, Mr Knight repeats the extraordinary and outlandish claim that the PPP library was reopened on 6 April 2020 solely in order to defeat Knight v Sellman and the other proceedings referred to above.[186] Mr Knight goes on to state that, whereas he previously had library access for five hours per week, he now has it for only three hours per week.

166 Mr Knight then turns to Ms Sellman's statements concerning her discovery that Mr Knight had used a computer in the Government Functions area of PPP on numerous days in March 2020. In response,[187] Mr Knight says that the two laptop computers for prisoner use at PPP's Government Functions building are not connected to a server, do not store prisoner's computer accounts, and are not connected to a printer. He says that these computers are for examining video, audio and other legal files. He says that access to these computers is dependent on other prisoners who wish to use these computers and whether there is an available room in the building. I note, however, that Mr Knight does not actually contradict anything said by Ms Sellman in this regard.

167 From paragraph 40 of his written submissions onwards, Mr Knight turns to responding to Ms Sellman's outline of submissions dated 9 April 2020.

168 In paragraph 41, in response to Ms Sellman's statement that on 3 March 2020 Mr Knight informed the Court that this leave application would be withdrawn in the event that he had access to all files from the laptop, Mr Knight submits that he is entitled to have access to all of those files that he previously had access to, particularly those relevant to ongoing court proceedings. Mr Knight does not deny that he informed the Court in the manner asserted by Ms Sellman.

169 In response to Ms Sellman's submission that her affidavit shows that the decision to remove access to the dedicated laptop computer was based on a range of stated considerations, Mr Knight submits[188] that the decision taken to remove access to the laptop computer was 'capricious' given that it was taken after two years of providing access to the computer, and that Mr Knight's circumstances (e.g. his 'need' to prepare for ongoing court cases) had not changed. In fact, Mr Knight submits, his 'need' has increased due to an increase in court proceedings and the partial lockdown of PPP caused by the COVID-19 pandemic.

170 As to the submission in paragraph 5 of Ms Sellman's outline to the effect that Mr Knight does have access to his files largely to the same degree that he did up until February 2020, and that he could access those materials to complete his submissions for the Court in the leave application relating to the convictions, Mr Knight submits that, with respect to the images disk, Ms Sellman does not outline how Mr Knight is to gain immediate access to the disk when the need arises (e.g. in the middle of drafting submissions in the prison library).[189] Mr Knight submits again that this process has not been instituted before with respect to Mr Knight or with respect to any other prisoner.[190]

171 Mr Knight makes no comment on Ms Sellman's submissions as to the consequences of the application of the VPA.

172 Mr Knight does not directly address the submission by Ms Sellman in paragraph 9(a) of her written submissions that Mr Knight is not entitled to a laptop or to access to a laptop as a right under the Corrections Act 1986 (Vic) or at common law. Nor does Mr Knight dispute Ms Sellman's contention that this Court has dismissed repeated applications by him seeking similar relief.[191]

173 Mr Knight agrees with Ms Sellman's submission that whether Mr Knight's 'common law right of unimpeded access to the court' is being infringed is an objective test.[192] He goes on to make the following submissions in this regard:

1. ... the Macquarie Dictionary defines 'impede' to mean 'to retard in movement or progress by means of obstacles or hindrances; obstruct; hinder'. Synonyms of 'impede' include the following: obstruct, hinder, hamper, slow down, delay, hold back, hold up, encumber. The Macquarie Dictionary does not define 'impede' to mean prevent. The authorities in jurisdictions other than Victoria[193] establish that the right is infringed even if there is no proven delay but where delay is intended by the defendant or if it is an unintended consequence of the action complained of.[194] Seen as a spectrum, the right runs from total access to the court[195] to a total physical denial of access to the Court. The decisions of superior courts in jurisdictions other than Victoria start the process of examining whether the right has been infringed from the 'total access' end of the spectrum. In British Columbia Government Employees' Union (BCGU) v Attorney-General of British Columbia [1988] 2 SCR 214; (1988) 44 CCC (3d) 289 (SCC) in a case involving the picketing of the Court building, Dickson CJC held (at 232 [SCR]) that: 'At the very least, the picketing was bound to cause delays in the administration of justice and, as has been often and truly said, justice delayed is justice denied'. The decision in BCGU has been followed in Canada. In R v Gordon (1988) 130 CCC (3d) 129, the Court held (at 162) that:

While the court was concerned with physical denial of access to justice in the BCGEU [sic] v BC (A-G) case, the court was careful to define an affront to access to justice as a hindrance, interference, denial or delay 'from whatever source'. The concept of access to justice is a multi-faceted and not unlimited in scope. Access to justice may be impeded or denied physically or constructively by conduct tending to deter an individual from approaching the court system. As to any barrier occasioning delays in the administration of justice, at page 302 of the BCGEU [sic] decision, the Chief Justice observed that '... justice delayed is justice denied'.

1. The relevant decisions of this Court, particularly those involving the applicant, indicate that this Court starts the process of examining whether the right has been infringed from the 'total denial' end of the spectrum. This process is, with respect, wrong.[196] The decisions of other jurisdictions does not support this legal reasoning. To hold otherwise is to hold that the respondent can legally obstruct, hinder, hamper, slow down, delay, hold back, hold up, or encumber the applicant up to the point just short of physically restraining the applicant from entering the Court. It is also to hold that such obstruction and hindrance need not be motivated by any genuine need or justified by any legitimate reason.
2. The relevant authorities in the United Kingdom are: Raymond v Honey [1982] 1 All ER 756; [1983] 1 AC 1; R v Secretary of State for the Home Department, ex parte Wynne [1992] 1 QB 406; 2 WLR 564 and R (on the application of Gurkirat Singh Dhanota) v Secretary of State for the Home Department [2003] EWHC 18 (Admin); in the European Court of Human Rights Costello v United Kingdom (unreported, European Commission of Human Rights, application number 8574/79, 18 October 1985), at [29] & [45]-[47]; in Canada, in addition to BCGU and R v Gordon, Solosky v R [1980] 1 RCS 821 and R v Drader [2012] ABQB 168; in New Zealand Taylor v District Court at North Shore (unreported, High Court, White J, CIV-2009-404-2350, 24 March 2010) at [70-[73], and in the United States, Bounds v Smith [1977] USSC 67; (1977) 430 US 817; 97 SCT 1491.
3. In Dhanota, the English High Court of Justice held in relation to access to a laptop computer by a prisoner that on the date the application was issued, the applicant had not been provided with IT equipment. A legal basis for the court to intervene was provided by Article 6 of the European Convention of Human Rights 1950, namely to secure the applicant's right of access to the court. The Judge directed that the defendant should arrange for facilities enabling access to the applicant's computer and storage facility. Further, the defendant accepted that the applicant could have access to printing facilities at reasonable times and at a cost of 1p per page.
4. The applicant also notes that the other prisoners who have also brought proceedings in this Court regarding access to a personal in-cell computer either still have such access (eg, Hugo Rich and Craig Minogue) or previously had such access (eg, Greg Brazel). See R v Rich [2008] VSC 141 and Brazel v Westin and White [2013] VSC 527. The applicant is alone in having never been granted access to a personal 'in-cell' computer.[197]

174 In response to the propositions in paragraphs 9(d) and 9(e) of Ms Sellman's submissions, namely that the onus is on Mr Knight to establish that he is being prevented from accessing the Court, or that it is, or will be, impossible for him to present his case, and that the question is not what is easier or most convenient for Mr Knight in the conduct of his various litigation, Mr Knight simply refers to and repeats the submission made in his paragraph 45 as set out above.

175 Next, in paragraph 51 of his submissions, dealing with paragraph 9(f) of Ms Sellman's submissions, Mr Knight appears to accept that he has access to all of the data/documents that were saved to the laptop, except the disputed crime scene and autopsy images. As to paragraph 9(g) of Ms Sellman's submissions (relating to the extent of Mr Knight's access to computer facilities during library hours), Mr Knight simply refers back to his abovementioned contentions about the library hours and the limitations relating to the computers in the PPP Government Functions building.

176 In relation to paragraph 9(h) of Ms Sellman's submissions, in which it is put that there is no evidence that Richards J requires copies of the photographs, Mr Knight refers again to what he had already submitted in that regard and asks rhetorically whether Ms Sellman is suggesting that he should submit draft submissions to Richards J or to Corrections Victoria before these 'vetted' submissions are approved for filing. Mr Knight also submits that whether the photographs may be 'distressing' is clearly an objective test. He submits again that the reason offered for 'withholding' access to the disk containing the photographs is grounds for granting access to a personal 'in-cell' computer.

177 As to the proposition in paragraph 9(k) of Ms Sellman's outline that there is no evidence that Mr Knight is being prevented from accessing the Court, or that it will be impossible for him to present his case, Mr Knight simply refers to and repeats the submissions he had made in paragraphs 44 to 47 as set out above.

178 Mr Knight makes no rejoinder to the proposition in paragraph 9(l) of Ms Sellman's submissions to the effect that whether any future computer access regime would have the effect of preventing Mr Knight from accessing the Court is a matter of speculation.

179 In paragraph 55 of his written submissions, in relation to the proposition in paragraph 9(m) of Ms Sellman's submissions to the effect that the judge or court seized of any pending proceeding will be best placed to deal with any complaints that Mr Knight has about his ability to conduct his litigation, Mr Knight simply asks another rhetorical question, namely whether Ms Sellman is suggesting that Mr Knight make a separate application for relief based on the same 'cause of action' in each proceeding.

180 In paragraph 56, in response to paragraph 10 of Ms Sellman's written submissions in which it is contended that there has been no breach of the Corrections Act 1986 (Vic) or of the Corrections Regulations 2019, Mr Knight submits that his claim for relief is not based in either the Corrections Act 1986 (Vic) or the Corrections Regulations 2019, but in the common law and in s 24 of the Charter.[198]

181 In paragraph 57, in response to the proposition in paragraph 11 of Ms Sellman's submissions that the courts have only a limited role in relation to the management of prisons, Mr Knight submits as follows:

... the cause of action is not based in a decision concerning the management of prisons but in the respondent's decision to impede the applicant's access to the Court. It is for the Court, not the respondent, to regulate its own proceedings and those bringing proceedings before it for determination. The applicant's complaint is simple: the material in question is relevant to the applicant's preparation of an appeal against conviction and sentence; the applicant previously had unfettered access to that material for two years; the respondent made the unilateral decision to remove access to that material without cause; the respondent made a further decision without cause to fetter the applicant's access to that material; the applicant wants the material returned to him.

182 The final paragraph of Mr Knight's submissions is paragraph 58. It reads as follows:

1. In The Commissioner, Corrections Victoria v Knight [2010] VSCA 203 (13 August 2010), Maxwell P stated (at [33]-[34]) that:

[33] Two final comments. We are not asked to express a view on the issue now likely to be ventilated, but it seems to me with respect that there is very considerable force in what Robson J said about the possible reaction of the Court to the legal issue as now identified. It is not at all clear to me how the status of a person as a vexatious litigant could be relevant to the question of that person's access to computer facilities, when the express object of his seeking access is to enable the person to exercise his right to apply for leave to litigate. That is of course a question for the judge who will hear this proceeding.

[34] Finally, since I have concerns about the pressures on this Court and the trial Court, I cannot refrain from making the following comment. It seems surprising that what on the face of it would appear to be relatively minor issue of access to computer facilities should have required a full dress application for leave to appeal such as this. I would have thought there were more significant matters of prison administration to which such litigation effort and public resources would be directed. Of course, every person has a right to challenge decisions. But if, in the end, this is about ensuring that a prisoner, like any other citizen, can properly exercise the rights which as a vexatious litigant the Supreme Court Act 1986 (Vic) confers on him, then it may be that now is the time for some reconsideration.

1. As indicated above, I am far from satisfied that the proposed proceeding in Knight v Sellman would not be a vexatious proceeding; and I am far from satisfied that there are reasonable grounds for the proposed proceeding.[199] Rather, in my view, the proposed proceeding would in fact be an abuse of process.
2. The order that Mr Knight would seek is a mandatory injunction, in one or other of two specified forms, against the General Manager of PPP. However, on the material filed in Knight v Sellman, there is no prospect of the Court granting either form of injunction, or even a modified form of such an injunction.
3. Courts do not have jurisdiction or power to grant an injunction unless the moving party can establish a relevant cause of action, in the sense of establishing a proper legal claim, in either public law or private law, enforceable by injunction.
4. Under s 85(1) of the Constitution Act 1975 (Vic), this Court is the superior court of Victoria 'with unlimited jurisdiction'.[200] However, such jurisdiction relates to the proper exercise of judicial power and not the exercise of an administrative function such as the granting of a licence.[201] The exercise of the judicial power of a superior court - including its inherent power - is 'not at large'.[202] In New South Wales, the counterpart of s 85 of the Constitution Act 1975 (Vic) is s 23 of the Supreme Court Act 1970 (NSW). Section 23 provides:

The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales.

That section is at least as broad as s 85 of the Constitution Act 1975 (Vic). Nevertheless, in Reid v Howard,[203] Toohey, Gaudron, McHugh and Gummow JJ said: 'the inherent power and the jurisdiction conferred by s 23 of the Supreme Court Act are to be exercised only as necessary for the administration of justice'.[204] In Slaveski v Victoria,[205] Kellam and Dodds-Streeton JJA treated that statement as being equally applicable in Victoria.

1. More particularly, justice in the superior courts is to be administered according to law, and not otherwise. Accordingly, in Commissioner of Corrective Services v Liristis ('Liristis'),[206] a decision of the Court of Appeal of New South Wales, Basten JA (with whom Beazley P agreed), referring to s 23 of the Supreme Court Act 1970 (NSW), said:

Thirdly, and perhaps self-evidently, the jurisdiction referred to in s 23 is restricted to the administration of justice according to law. As pithily explained by Gaudron J in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd:

"[59] It is beyond controversy that the role of Australian courts is to do justice according to law - not to do justice according to idiosyncratic notions as to what is just in the circumstances. Hence, the rule of law and not the rule of judges. Necessarily, that basic proposition informs and controls the power conferred on the Supreme Court of Tasmania... to grant an interlocutory injunction 'in all cases in which it shall appear to the Court or judge to be just and convenient that such order should be made'.

[60] ... [A]n injunction is a curial remedy. Because it is a remedy, it is axiomatic that it can only issue to protect an equitable or legal right or, which is often the same thing, to prevent an equitable or legal wrong. So to say, is simply to emphasise that the function of courts is to do justice according to law."

"[105] ... The conferral upon the Supreme Court by statute of the power to grant interlocutory injunctions in cases in which it appears to the Court to be just or convenient to do so is not at large. Here, the statute did not confer on the Court power to make an order on the application of Lenah other than in protection of some legal or equitable right of Lenah which the Court might enforce by final judgment."

The reasoning of Gleeson CJ was to similar effect; those principles reflected the earlier judgment of Gaudron, McHugh, Gummow and Callinan JJ in Cardile v LED Builders Pty Ltd. [207]

188 Liristis related to a claim by a prisoner against his gaolers for better access to computer facilities and the like for the purposes of an upcoming criminal trial. It is a recent decision at appellate level and an important one for present purposes. I will return to it shortly.

1. Mr Knight, having been before this Court many times previously in pursuit of greater access to computer facilities, concedes, correctly, that his present claim cannot be based on any of the rights conferred on prisoners by the Corrections Act 1986 (Vic) or the Corrections Regulations 2019. No right of access to a computer or to computer files is conferred on prisoners by that legislation.[208] Mr Knight also concedes, correctly, that, putting aside for a moment his claim to a 'common law right of unimpeded access to the courts', the common law does not confer on him a legal right, as against his gaolers or anyone else, to have access to a computer or to computer files.[209]
2. Nor does Mr Knight seek to invoke this Court's supervisory jurisdiction (in public law) to engage in judicial review of some decision or action, or threatened decision or action, of the management of PPP or of Corrections Victoria, or of some other public official or public authority. Again, Mr Knight has been down that road many times before in quest of greater computer access or in quest of other things, with little or no practical success. It seems that he has learnt well that the supervisory jurisdiction does not extend to the review of administrative decisions on their merits; that, on judicial review, the Court is concerned only with the lawfulness of the relevant decision or action, not with any other qualities it may have or not have; and that, generally speaking, even when a want of lawfulness is found, the most that the Court can do by way of remedy is to quash or set aside the relevant decision or action and require the public authority or public official to reconsider the decision or action according to law.[210]
3. It is true that Mr Knight said in his written submissions of 24 April 2020 that the decision taken by Ms Sellman in November 2019 to 'remove' his access to a dedicated laptop computer was 'capricious',[211] and that her alleged decisions to 'remove' access to the photographic images and then to 'fetter' access to those images were made 'without cause';[212] and it is also true that capriciousness in an administrative decision may betoken legal unreasonableness in the public law sense.[213] However, Mr Knight's assertions in this regard were merely passing comments (and baseless comments at that) on Ms Sellman's stated reasons for the several arrangements that were made in relation to Mr Knight's access to the computer and the files on the computer. From the beginning of Knight v Sellman, Mr Knight has been consistent in seeking leave to claim something quite different from judicial review, namely, the direct intervention of the Court by way of an injunction that would require PPP actually to give Mr Knight either access to the laptop computer to which he previously had access or copies of the files on that computer. Nowhere does Mr Knight put forward a legal submission clothed in the language of judicial review. Nor does he cite any of the leading cases from that field of law. He does refer to various Knight cases, but only for purposes other than a purpose of relying on them for the principles of judicial review. And, in summing up his case, Mr Knight expressly disclaims any suggestion that his claim is based on non-compliance with the Corrections Act 1986 (Vic) or the Corrections Regulations 2019 or on 'a decision concerning the management of prisons'.[214] Rather, he states that his claim for relief is 'based in' the common law and s 24 of the Charter, and that the 'cause of action' is based in the decision of Ms Sellman to 'impede the applicant's access to the court'.[215] Mr Knight emphasises the word 'impede' and its dictionary synonyms. He submits, in effect, that the smallest interference or hindrance caused by the conditions of his imprisonment in relation to his ability to communicate with the courts or to prepare his cases constitutes a breach of his asserted right of unimpeded access to the courts.
4. On the other hand, at no stage has Mr Knight asserted that Ms Sellman (or anyone else) has committed contempt of court. Much less has Mr Knight sought leave to apply to the Court to have Ms Sellman (or anyone else) dealt with for contempt of court. Nor, on the material filed, would there appear to be any basis for such an application, having regard to the statutory background, the reasons stated by Ms Sellman for the actions taken, the nature and circumstances of Mr Knight's pending applications to the Court and to the AAT, and the avenues that have remained open to Mr Knight from time to time to prepare materials for, and to communicate with, the Court and the AAT.[216]
5. Where does that leave Mr Knight in terms of his claim to enforce his alleged 'common law right of unimpeded access to the courts'? It leaves him in substantially the same position as the unsuccessful respondent in Liristis.[217] As the headnote of that case correctly records, Mr Liristis was being held on remand prior to trial in the District Court of New South Wales. He filed a summons in the Common Law Division of the Supreme Court of New South Wales seeking orders that he be granted access to a printer, scanner and personal laptop. He argued that this equipment was necessary in order to enable him to prepare adequately for his pending trial in the District Court of New South Wales. A single judge of the Common Law Division of the Supreme Court of New South Wales made orders, directed to the Commissioner of Corrective Services, that Mr Liristis be given access to the equipment for use in the preparation and conduct of his case. The Commissioner sought leave to appeal from the judgment and orders on the basis that the orders made were outside the jurisdiction of the Supreme Court. Mr Liristis argued that the exercise of power by the single judge could be supported by s 23 of the Supreme Court Act 1970 (NSW) , or by the inherent jurisdiction of the Court. By majority (Beazley P and Basten JA, White JA dissenting), the Commissioner's appeal was allowed. The majority reasoned as follows. The jurisdiction of the Supreme Court of New South Wales, whether its inherent jurisdiction or its jurisdiction under s 23 of the Supreme Court Act 1970 (NSW), was restricted to the administration of justice according to law. The jurisdiction did not, of itself, provide a basis to enforce a freestanding and unitary 'right to a fair trial' or 'right of access to the courts' enforceable by order of the Supreme Court. There may be circumstances in which the Supreme Court of New South Wales has an independent supervisory jurisdiction with respect to criminal trials in the District Court of New South Wales. However, this was limited to the power exercisable by the Court of Appeal of New South Wales where the District Court had exceeded or was threatening to exceed its jurisdiction. The appropriate forum for ensuring that a defendant had a reasonable opportunity to prepare for trial is the trial court, and the Supreme Court should generally defer exercising any independent supervisory jurisdiction in favour of consideration of the issue by the trial court. It is generally wrong for a Judge of the Supreme Court of New South Wales to exercise some form of supervisory jurisdiction in advance of, or during, a criminal trial in the District Court of New South Wales.
6. The view of White JA, dissenting, was that the Supreme Court's inherent jurisdiction extended to the ensuring of a fair trial in the District Court. Whilst generally any application to ensure such a fair trial should be made to the District Court, in the particular urgent circumstances faced by the primary judge, where prior orders of the District Court had not had their intended effect, there was no error in the orders made.
7. The leading judgment of the Judges in the majority was given by Basten JA. Beazley P said that she was persuaded that Basten JA was correct in his analysis of the judgment below and of the nature and extent of the court's jurisdiction and powers and with his conclusions on that question.[218] Her Honour added some further observations of her own in her concurring judgment, particularly with respect to the Court's inherent jurisdiction.
8. Basten JA examined the reasoning of the primary judge and concluded that her Honour had made her decision by reference to her Honour's own assessment of the merits of Mr Liristis' claim to be provided with the computer and other facilities in question. On that basis, Basten JA determined that the trial judge had not engaged in an exercise of judicial review of an administrative decision.[219] Similarly here, as I have mentioned, Mr Knight does not seek judicial review. Next, Basten JA noted that no charge of contempt had been laid against the Commissioner (or any other officer), and that the court below had not dealt with the matter as one of contempt. Accordingly, that head of possible jurisdiction was dismissed by Basten JA.[220] Again, as I have mentioned, the same applies here.
9. Basten JA then turned to the nature of the 'rights' sought to be enforced. So far as particularly relevant to the present case, Basten JA said:

[66] There was no suggestion that the respondent has any statutory right to have a scanner and his own personal laptop computer in his prison cell. Rather, the respondent relied upon a common law right, enforceable by a superior court of general jurisdiction, and identified as a 'right of access to the courts', or a 'right to a fair trial'. The submissions implied that there had been a breach of such a legal right, for which there was a remedy available against the defendant. However, care should be taken in using the concept of a 'right', forming a component of the administration of justice.

[67] A 'right to a fair trial' may overlap with a 'right of access to the courts', but they are not coextensive. Further, neither identifies a single 'right': rather, each is a label describing a range of elements understood to be inherent requirements of a common law based system for the administration of civil and criminal justice.[221] ...

[68] Not only is it imprecise to talk about a unitary 'right to a fair trial', once unpacked it becomes apparent that the various component elements may be qualified in various respects and many are subject to statutory regulation. One aspect of such regulation, relevant to the conduct of the respondent's trial for prescribed sexual offences, is a prohibition on an unrepresented accused person cross-examining a complainant.[222] In the present case, the respondent has obtained a limited grant of legal aid, this Court was informed, at least in part for the purposes of such cross-examination.

[69] Most rights are not absolute; express statutory or constitutional statements of human rights are generally expressed to be subject to 'reasonable limits'.[223] Any rights in issue here are qualified in substantial respects, particularly by the need for enforcement of security in a custodial environment.

[71] The common understanding of a right, in domestic law, is that it involves a correlative duty on the part of the other party to enforcement proceedings, being in this case the state or an officer or agency of the state. The detention of the respondent pending trial, and the conditions of his detention, infringed aspects of his liberty in various ways; however, these infringements were authorised by laws, the validity of which was not challenged. There was no threat of interference by others from whom the respondent sought state protection. Accordingly, at its highest, his claim alleged infringement of an affirmative obligation of the state, a category giving rise to problems of enforcement under domestic law.

[72] For example, a litigant may assert that the issue of a subpoena to produce documents is necessary for the conduct of a fair trial. Yet the right is not enforceable against a judicial officer who declines to issue the subpoena, but by way of interlocutory appeal in the proceedings. Further, it is the 'duty' of the trial judge to ensure that the trial is, within the bounds of his or her control, conducted fairly. But that does not mean that an accused person has an enforceable right against the judge; rather, he or she has a right to have a conviction set aside if an appeal court is satisfied that the trial was not conducted fairly and that a substantial miscarriage of justice has occurred. At least for domestic law purposes, this circumstance contradicts the usefulness of describing the accused's interest in the conduct of a fair trial as a 'right'. It is not a freestanding right enforceable by orders of the Supreme Court in proceedings unrelated to trial. It is aptly described as an immunity from conviction where the trial has been unfair, in the eyes of the law.[224]

1. Basten JA then referred to certain English cases, including Raymond v Honey,[225] a case relied upon in turn by Mr Knight in the present matter. Nothing in Raymond v Honey or in any of the other English cases to which Basten JA referred led his Honour to any different conclusion. Indeed, in his Honour's view, cases in the line of Raymond v Honey, such as R (on the application of UNISON) v Lord Chancellor,[226] confirmed that, at least in relation to the established criminal and civil courts, what is in issue in cases of the present kind is the 'due administration of justice'.[227] Basten JA then[228] discussed two decisions of the High Court of Australia, namely, Jago v District Court of New South Wales ('Jago')[229] and Dietrich v The Queen ('Dietrich'),[230] to which I will briefly return below. Basten JA proceeded:

It is, in any event, an awkward use of language to suggest that in the present case the respondent is being denied 'access to justice'. He has been charged with criminal offences to which he has pleaded (or intends to plead) not guilty. There is no suggestion that he will not be able to run whatever defences he wishes, have the witnesses for the prosecution cross-examined, make submissions and take the usual steps to defend himself. There is no suggestion that, despite his present detention in custody, he will not be able to attend court for his trial, as he attended court on the present appeal. Rather, what he complains of is access to equipment in the form of a scanner and a laptop computer, which he claims are necessary to allow him properly to prepare his defence. He does not suggest that the state provide such equipment; he seeks to have his own equipment available in his cell. The question he sought to raise is, essentially, what is required, as a matter of law, to provide a trial which will not be unfair. There is no doubt that that issue could be raised before the trial court. But its enforcement must be indirect because he has no legal, equitable or statutory right to enforce. The Supreme Court's jurisdiction under s 23 is not engaged.[231]

1. In setting out his conclusions, Basten JA made the following statements of particular relevance to the present case:

[104] The proposition that the Supreme Court has power to order a gaoler to take steps to provide a prisoner with resources to run his criminal defence goes a step further than any authority to which the Court was directed and is untenable. Importantly, no authority suggested that it was a proper function of the Supreme Court to weigh the demands of a prisoner for access to equipment which was not permitted in the gaol according to ordinary operating procedures against the gaoler's concern for security.

[105] It is notorious that security in prisons is a serious issue at all times. The particular concerns raised in this case involved the potential for smuggling in small modems which could then be used by prisoners with mobile phones (illegal, but known to exist within the gaols) to obtain access to the internet (also a prohibited practice).

[106] By contrast, where a prisoner seeks the taking of steps necessary to ensure a fair trial, the nature of the claim must be analysed in the context of the system of criminal justice. It is undeniable that, at least in many cases, a person who is arrested, charged and denied bail will be hindered or impeded by the constraints of custody, as compared with an accused person who is at large in the community awaiting trial. The accused person in custody may apply for bail, but has no separate entitlement to seek an order from a Supreme Court judge directing that he or she be released from custody by the governor of a prison for the purpose of conferences with his or her legal representatives. The assumption underlying the significant number of cases addressing communications between prisoners and their legal representatives is that such communications must occur within the confines of detention.

[107] None of that is to deny that the respondent should not have a reasonable opportunity to prepare his defence prior to the commencement of his criminal trial. Rather, it is to insist that the authority responsible for the conduct of the trial, namely in this case the District Court, is the proper forum for determining what is necessary in the circumstances of the particular case.

[110] As a matter of law, the orders made by the primary judge are not supportable and must be set aside. ....[232]

1. I note that, in Liristis, the primary judge had referred to certain decisions of this Court, being decisions upon which Mr Knight also has relied in his submissions before me. Those decisions were in turn referred to by the dissenting judge, White JA, in the following terms:

In her reasons quoted above at [117] the primary judge referred to decisions of single judges of the Supreme Court of Victoria that addressed the need of an accused in either a criminal trial (R v Rich (Ruling No 2) (2008) 184 A Crim R 161; [2008] VSC 141) or a civil trial (Knight v Wise [2014] VSC 76 and Brazel v Westin [2013] VSC 527). These in turn referred to Rich v Groningen [1997] VSC 35; (1997) 95 A Crim R 272. In those cases no coercive orders were made against the prison authorities requiring them to provide computer facilities to the prisoner to enable the prisoner to defend charges against him or to maintain a claim he asserted, but the jurisdiction to do so was assumed or asserted.[233]

Plainly, those Victorian cases did not lead Beazley P or Basten JA to take a view different from the view their Honours took. In any event, as White JA in effect acknowledged, any statements in any of those particular Victorian cases that might have supported Mr Knight's position were obiter. Likewise, insofar as there are any observations that might have assisted Mr Knight in the judgments of the members of the Court of Appeal in Commissioner, Corrections Victoria v Knight,[234] those observations, too, were obiter.

1. Moreover, there are several other Victorian decisions[235] that are at least fully consistent with the analysis of the majority in Liristis. In the most recent of those, namely Proudfoot v Director of Public Prosecutions ('Proudfoot'),[236] Tate, McLeish and Hargrave JJA observed, by reference to the abovementioned decision of the High Court in Jago,[237] that in Australia there is a fundamental common law 'right' to a fair trial. However, relying on the other abovementioned decision of the High Court of Australia, namely Dietrich,[238] their Honours held that this 'right' was more correctly described as an immunity against conviction otherwise than after a fair trial.[239] On that basis, their Honours concluded that there is no free-standing 'right' to counsel of choice at common law.[240] In my view, Proudfoot tells very strongly against the existence of the free-standing common law 'right' of unimpeded access to the courts on which Mr Knight would seek to rely. This is not to deny the existence of the general common law principle that citizens should have unimpeded access to the courts, a principle that may well have application in fields such as contempt[241] or statutory interpretation.[242] Of course, as a trial judge of this Court, I am bound by the decision of the Court of Appeal in Proudfoot.
2. Further, as a trial judge of this Court, I must follow and apply the judgment of the Court of Appeal of New South Wales in Liristis unless it is relevantly distinguishable or I am convinced that it is plainly wrong.[243] In my view, Liristis is not relevantly distinguishable insofar as it relates to the question whether this Court has jurisdiction to entertain a claim for an injunction based on an alleged free-standing common law right of access to the courts. And I am certainly not of the view that Liristis is plainly wrong. Indeed, in my respectful view, it is correct, and it is applicable to this case. Hence, this Court would have no jurisdiction to entertain Mr Knight's proposed claim for an injunction insofar as it would be based on an asserted free-standing 'common law right of unimpeded access to the courts'.
3. As indicated above, Mr Knight refers not only to the common law, but also to the Charter as sources of the 'right' he seeks leave to endeavour to enforce.[244] Mr Knight's reference to the Charter is a passing one. He does no more than mention it. He does not refer to any of the Australian jurisprudence relating to the Charter. Nor has he given notice of a Charter point to the Attorney-General or to the Victorian Equal Opportunity and Human Rights Commission pursuant to s 35 of the Charter. The only section of the Charter referred to by Mr Knight is s 24. So far as may be relevant, s 24 provides:

(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

1. Despite the passing nature of Mr Knight's reference to the Charter, I will, having regard to certain Victorian authorities not cited by Mr Knight, especially Bare v Independent Broad-Based Anti-corruption Commission ('Bare'),[245] Certain Children v Minister for Families and Children,[246] Certain Children v Minister for Families and Children (No 2)[247] and Rich v Howe,[248] assume in favour of Mr Knight, without deciding, that the 'fair hearing' human right recognised in s 24(1) of the Charter includes 'the right of access to the courts',[249] and that this 'right' is potentially enforceable against a public authority in accordance with ss 38 and 39 of the Charter in the same way as other human rights recognised in the Charter may be enforced against a public authority, even by way of injunction, and this notwithstanding the limitations on the enforcement of the corresponding common law 'right to a fair trial' and 'right of access to the courts' identified in Dietrich, Liristis, and Proudfoot as discussed above, and notwithstanding that in Bare itself Tate JA said that the s 24(1) human right 'reflects that protected by the common law'.[250]
2. Nevertheless, as Basten JA noted in Liristis,[251] the human rights recognised in the Charter are subject to 'reasonable limits' as provided in s 7(2) of the Charter. Section 7(2) provides:

(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including:

(b) the importance of the purpose of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

Hence, like the corresponding common law 'right', the human right recognised by s 24(1) of the Charter will always be qualified in substantial respects in relation to a prisoner, particularly by the need for enforcement of security in a custodial environment.

1. In any event, an injunction to enforce Mr Knight's asserted common law 'right' or to enforce his asserted human right under s 24(1) (and ss 38 and 39) of the Charter would not be granted without a proper factual foundation. Any such factual foundation is entirely absent here. That is effectively admitted by Mr Knight, insofar as he is driven to submit, as he does, that the least hindrance that he may suffer in his ability to prepare or advance his cases should lead to injunctive intervention by this Court; and insofar as Mr Knight is driven to submit, as he does, that the Victorian authorities (which mainly relate to Mr Knight himself) that he sees as standing in his way are 'wrong' in that they do not 'start the process of examining whether the right has been infringed from the "total access" end of the spectrum'.[252]
2. Incidentally, I note that the two Canadian cases to which Mr Knight refers in this regard,[253] were both contempt cases. It may well be that a mere obstruction or partial interference with access to a place protected by a court order or to a court itself will amount to a contempt of court, depending on all the circumstances.[254] On the other hand, to establish a contempt of court may necessitate proving or disproving many things other than a restriction of access to the protected place or the court. However that may be, the Canadian cases cast no doubt on the proposition that any common law right of unimpeded access to the courts, or, for that matter, any Charter right, is not absolute and is subject to any relevant statutory provisions and to administrative decisions lawfully made pursuant to such statutory provisions.[255] The relevant statutory provisions include the provisions of the VPA itself.[256] The same comments apply to Raymond v Honey[257] and the other international cases cited by Mr Knight. In any event this Court must of course follow and apply the law of Australia (including the law of Victoria), not the law of any other jurisdiction.
3. Returning to the absence of any factual foundation for an injunction, I note that Mr Knight makes no or no proper allowance for what Basten JA refers to as 'the need for enforcement of security in a custodial environment'.[258] Mr Knight ignores or understates the right and responsibility of Ms Sellman to exercise her judgment as to how best to manage access to computer and other resources in PPP and as to the extent, if any, of Mr Knight's reasonable requirement for access to a computer. Mr Knight ignores or understates his own history of abuse of computer access. He does not recognise that Ms Sellman was, and this Court would be, entitled to take into account the vexatiousness of Mr Knight's actual past and present litigious behaviour, whether or not Mr Knight's 'status' as a declared vexatious litigant is relevant.[259]
4. Moreover, whatever may have been the situation between late November 2019 and February 2020, the evidence in this case demonstrates that Mr Knight has had ample access to computer resources and to his computer files in March and April 2020. His ability to prepare and file his detailed written submissions dated 24 April 2020 in Knight v Sellman is, alone, sufficient testament to that. Mr Knight's ridiculous assertion that the prison library was only reopened in order to defeat the present case and two other cases may also be taken as confirmation that Mr Knight is not truly in need of any additional computer access.
5. Moreover, Mr Knight's proposed claim is for computer access or for copies of the computer files, not both. As shown in particular in certain italicised parts of Mr Knight's own material as set out above, Mr Knight now admits that he has copies of all of the computer files, save only that he must seek permission from time to time to view and make use of the copies of the crime scene and autopsy photographs on the second disk. That appears to be nothing but a minor quibble on Mr Knight's part, unworthy of absorbing any more of the resources of this Court.
6. There are several additional or related reasons why Knight v Sellman should be dismissed.
7. First, Knight v Sellman is not the correct vehicle to advance any claim based on the common law right to a fair trial or on the common law right of access to the courts, as properly understood. As explained in Liristis,[260] any such claim should be made to the court or judge responsible for the substantive matter. That was established definitively in Liristis in relation to criminal matters. And it seems to me that the logic of Liristis shows that the same applies with respect to civil matters.
8. Second, because the human right to a fair trial (including the 'right of access to the courts') under s 24(1) of the Charter 'reflects that protected by the common law',[261] once again much the same should apply: any claim to enforce the Charter right should usually be made to the court or judge responsible for the substantive matter.
9. Thus Liristis[262] indicates that, while in 2010[263] in Knight v Hastings,[264] Robson J was prepared to entertain a free-standing claim by Mr Knight for an injunction for the grant of computer access, based on the existence of other proposed or pending civil applications, and relying on the asserted 'common law right of unimpeded access to the courts', such an approach should not now be followed. However, that is not to say that the Court should not entertain an application by a person in Mr Knight's position for leave to commence an application for judicial review of an administrative decision made by a correctional authority, including where the existence of other proposed or pending applications is relevant to the proposed application for judicial review of the administrative decision.[265]
10. Third, in any event, the dismissal by me of the three applications of 2013 and of Knight v Cassar will obviously reduce any need Mr Knight might otherwise have had for access to computer facilities to deal with his other matters.
11. Fourth, as a corollary of the first and second points, insofar as Mr Knight has any basis to seek the intervention of this Court to obtain greater computer access for the purposes of his one remaining civil matter pending in this Court, namely Knight v Assafiri, Mr Knight can raise that claim before the judge to whom the matter has been allocated, namely Richards J, rather than rely upon it in Knight v Sellman.
12. Fifth, that leaves only one other civil matter that is actually pending, namely Mr Knight's application for review in the AAT.[266] Mr Knight has simply not provided any detail about that matter such as to suggest that its existence would be a proper reason for intervention on the part of this Court. I note that the original applications by Mr Knight in the AAT were commenced in 2017. In any event, Mr Knight can raise with the AAT itself any concern he may have with his ability to progress that matter. In fact, Mr Knight has already done so, and has obtained adjournments as a result.
13. Sixth, Mr Knight refers to an intended application to a Human Rights Committee of the United Nations. In that regard, he is legally represented. There is nothing to suggest that his ability to progress his intention in that regard would be significantly inhibited by the current conditions of his imprisonment.
14. Seventh, there is Knight v The Queen, on which, as mentioned above, Mr Knight has placed particular - and ultimately exclusive - reliance in the course of Knight v Sellman. The link between the two matters is the remaining issue about access to the 1998 photographs. As I have said, that issue appears to be a mere quibble on Mr Knight's part; and it appears to be an old, repeated quibble.
15. Knight v The Queen is an application under s 54 of the VPA for leave to commence an application under s 313 of the Criminal Procedure Act 2009 (Vic) for an extension of time within which Mr Knight may file a notice of application for leave to appeal, under ss 274 and 278 of the Criminal Procedure Act 2009 (Vic), against his conviction and sentence for the 1988 offences. At present, as indicated above, the hearing and determination of Mr Knight's application under the VPA for leave to proceed is allocated to Richards J. On 4 December 2019, her Honour published reasons for, among other things, dismissing an application made by Mr Knight for leave under the VPA to commence an application for an interlocutory order against the general manager of PPP that Mr Knight have access to the means of examining electronic legal files and producing court documents on a full-time basis (i.e. access to a computer on a daily in-cell basis).[267] Her Honour was not persuaded by Mr Knight's affidavit in that matter that his proposed interlocutory application was materially different from his numerous other proposed applications made in pursuit of his desire for access to a computer in his cell. So, for substantially the same reasons as were given by Moore J in Knight v Wilson,[268] Mr Knight's application for leave to proceed with the interlocutory application was dismissed. Richards J then proceeded to examine further Mr Knight's 'substantive' application for leave to bring a proceeding. Her Honour commented that, on the material before her, the proposed proceeding under the Criminal Procedure Act (Vic) appeared to be 'hopeless'. Her Honour set out reasons why the proposed application appeared to be hopeless. However, rather than dismissing the application for leave on the spot, Richards J gave Mr Knight an opportunity to consider her Honour's reasons for judgment and to file any further material upon which he might wish to rely.
16. Since then, as indicated above, Mr Knight has engaged in a series of interchanges with the management at PPP about the photographic images from the hand-up brief from his 1988 trial. In effect, he has transferred his complaints in that regard to Knight v Sellman. Mr Knight does have a form of access to those photographic images. In accordance with Liristis,[270] if there is any issue remaining in that regard, it should be raised with the court which is to decide whether or not Mr Knight is to have leave under the VPA to commence his proposed application under s 313 of the Criminal Procedure Act 2009 (Vic) for an extension of time. At present, the court with that function is the Trial Division of this Court constituted by Richards J.
17. Further, without cutting across, much less foreclosing, how Richards J might deal with Knight v The Queen, I cannot refrain from noting that, under s 54 of the VPA, it is provided that, unless the relevant general litigation restraint order provides otherwise, an application for leave to proceed must be made to 'the Victorian court or tribunal that would hear the proceeding to which the leave application relates'. In Mr Knight's case, the general litigation restraint order does not provide otherwise. Indeed, as noted above, J. Forrest J specifically ordered that any application for leave be made to the court or tribunal that would hear the proceeding to which the leave application related. Prima facie, it seems to me the Victorian court that would hear Mr Knight's proposed application for an extension of time is the Court of Appeal, rather than the Trial Division of the Supreme Court. If that be correct, then Mr Knight's reliance here, in the Trial Division, in Knight v Sellman, on Knight v the Queen, is all the more misconceived.
18. Finally, it is not necessary for me to form a concluded view, under s 58 of VPA, as to whether Knight v Sellman is 'materially different' from all previous applications made by Mr Knight. As already mentioned, there certainly are many similarities to previous applications, at the very least. The existence of those similarities tends strongly to indicate that even if, contrary to my opinion, the proposed proceeding in Knight v Sellman would not be an abuse of process, nevertheless it would not be appropriate to exercise the general discretion conferred by ss 54 and 55 of the VPA to grant leave to proceed.
19. For the many reasons identified above, Knight v Sellman must be dismissed.

1. All five of the proceedings with which I am dealing will be dismissed. In Knight v Sellman, for completeness, Mr Knight's application for leave to bring the interlocutory application, referred to in the order made by Daly AsJ on 3 April 2020, will also be dismissed.
2. In all the circumstances, it seems to me that the costs of all the participants in the five matters (including any reserved costs) should lie where they fall.
3. Orders will be made accordingly and the authenticated orders will be despatched to the parties.

[1] See A-G (Vic) v Knight [2016] VSC 488 (J. Forrest J) ('A-G v Knight').

[2] The five applications that are being dealt with now are listed in reverse chronological order in the heading to this judgment.

[3] As will be seen, in Knight v Sellman, Mr Knight appeared in person at oral directions hearings before Daly AsJ on 3 and 19 March 2020.

[4] A-G v Knight (n 1) [27]. See also Knight v Castle [2020] VSC 45, [2], [7]-[17] (Moore J) ('Knight v Castle').

[5] Knight v The Queen is one of the two pending matters that do not fall to be determined by me as part of the present exercise. See further below.

[6] As to the transitional position, see my judgment in Knight v Money [2015] VSC 105, [10]-[17] ('Knight v Money'), and see further below.

[7] See Knight v The Queen [2019] VSC 796, [3] (Richards J) ('Knight v The Queen').

[8] R v Knight [1989] VicRp 62; [1989] VR 705, 705.

[9] Knight v Money (n 6) [2]; A-G v Knight (n 1) [23] (J. Forrest J).

[10] A-G (Vic) v Knight [2004] VSC 407.

[12] In addition, the material filed in the present matters indicates that, over the same period, Mr Knight has made various applications to other Victorian courts or tribunals or to Commonwealth and other non-Victorian courts or tribunals.

[13] See the lists of published judgments and other determinations annexed to the judgment of J. Forrest J in A-G v Knight (n 1).

[14] See, eg, my judgment in Knight v Money (n 6) [2], [72], [93]-[95].

[15] Civil Procedure Act 2010 (Vic) ('CPA') s 16.

[16] Ibid s 18.

[17] Ibid s 19.

[18] Ibid s 20.

[19] Ibid s 22.

[20] Ibid s 23.

[21] Ibid s 24.

[22] Ibid s 25.

[23] Ibid s 28.

[24] As indicated below, on 17 August 2017, the High Court rejected a constitutional challenge brought by Mr Knight in relation to those provisions: Knight v Victoria [2017] HCA 29; (2017) 261 CLR 306.

[25] Vexatious Proceedings Act 2014 (Vic) ('VPA') s 1(a). As to the true nature and content of such 'rights', see below under the heading 'Knight v Sellman: determination'. In relation to the effect of a partially comparable reference in another statutory purpose provision to a 'right', see Ryder v Booth [1985] VicRp 86; [1985] VR 869, 870 (Young CJ); Accident Compensation Commission v Croom [1991] VicRp 72; [1991] 2 VR 322, 323 (Young CJ).

[26] Ibid s 1(b).

[27] The previous matters included Knight v Money (n 6) and Knight v Wise [2015] VSC 157 ('Knight v Wise').

[30] An expert psychiatric witness called by Mr Knight himself.

[42] Here, J. Forrest J was referring to certain observations made by Basten JA in Potier v A-G (NSW) [2015] NSWCA 129, [119]-[120].

[44] Ibid [47] (emphasis in original).

[52] Three of them were dealt with by Moore J on 6 June 2019: Knight v Wilson [2019] VSC 373 ('Knight v Wilson'). Another was dealt with by Richards J on 4 December 2019: Knight v The Queen (n 7).

[53] See affidavit of Mr Knight re-affirmed 4 April 2019 in Knight v Cassar (S ECI 2018/03024) [198]-[201].

[54] Except, of course, s 91 of the VPA itself. See my judgment in Knight v Money (n 6) [10]-[17]. Cf Knight v Shuard [2015] VSC 36 (Ginnane J).

[55] VPA s 55(b).

[56] See Phillip Morris Ltd v A-G (Vic) [2006] VSCA 21; (2006) 14 VR 538 (Court of Appeal); Knight v Anderson [2007] VSC 278; (2007) 16 VR 532, 534 [7] (Bell J); Knight v Money (n 6) [10], [12]. Those minimum requirements (as well as others) would also apply under the VPA: see VPA s 55(a).

[57] Section 21(7) provided that the Court, when exercising a power under s 21, must be constituted by a Judge of the Court. There is no equivalent provision in the VPA. But those things do not touch the present point.

[58] Supreme Court of Victoria, Practice Note No 1 of 1996 [1997] 1 VR 257; ZP v PS [1994] HCA 29; (1994) 181 CLR 639, 673; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439, 446-7; Neil J Williams, LexisNexis Butterworths, Civil Procedure: Victoria, vol 1 (at Service 312) [46.02.23].

[59] See Roberts v Harkness [2018] VSCA 215 [46]-[68], esp [58]-[60] ('Roberts v Harkness').

[60] But see now VPA ss 59 - 60.

[62] This includes the pre-31 October 2014 statutory framework.

[64] See and compare Muir v R [2004] HCA 21; (2004) 206 ALR 189, 194 [25] (Kirby J, dissenting); Rich v Secretary, Department of Justice [2010] VSC 390, [45] (Bell J); Hamzy v Commissioner, Corrective Services and New South Wales [2020] NSWSC 414, [158] (Bellew J).

[65] [1960] AC 965.

[66] Ibid 977. This statement was referred to with apparent approval by Barwick CJ and McTiernan J in Commonwealth Trading Bank v Inglis [1974] HCA 17; (1974) 131 CLR 311, 316.

[67] The exception is Knight v Cassar.

[68] See affidavit of Patricia Sellman sworn 9 April 2020 [21.2] ('Ms Sellman's affidavit of 9 April 2020') and written submissions of Patricia Sellman dated 9 April 2020 [9(i)] ('Ms Sellman's written submissions of 9 April 2020'), both filed in Knight v Sellman.

[69] Wentworth v Graham [2003] NSWCA 229; (2003) 57 NSWLR 741, 742 [2], applying Commonwealth Trading Bank v Inglis [1974] HCA 17; (1974) 131 CLR 311, 314, 319-320; Neil J Williams, LexisNexis Butterworths, Civil Procedure: Victoria, vol 2 (at Service 302) [300.0].

[70] Knight v Bell [2000] VSCA 48; Neil J Williams, LexisNexis Butterworths, Civil Procedure: Victoria, vol 1 (at Service 316) [23.01.45]. See also at [23.01.47].

[71] CPA (n 15) s 63(1).

[72] Ibid s 63(2).

[73] Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2017) [17.50] ('Judicial Review of Administrative Action').

[74] Ibid [17.140], [17.150], [17.160]; Moran v Secretary, Department of Justice and Regulation [2015] VSC 593; (2015) 48 VR 119, [21] (McDonald J).

[75] This history is recounted in Knight v Wilson (n 52) [9] (Moore J).

[76] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, 14 [37] (Gleeson CJ) ('Ex parte Lam'); Roberts v Harkness (n 59) [47].

[77] Roberts v Harkness (n 59) [46]-[68], esp at [47]-[50].

[78] See definition of 'vexatious proceeding' para: VPA (n 25) ss 3, 55. The substantive and procedural requirements of the Act itself are the same in relation to applications for leave to proceed made to any other Victorian court or to a Victorian tribunal.

[79] Clearly enough, even if the court or tribunal is satisfied for the purposes of s 58 of the VPA (n 25) that the application is materially different to a previous application made by the person, the court or tribunal is not required to determine that the application should proceed. There may be other reasons why the court or tribunal considers that the application should not proceed.

[80] See Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 609-616 (Brennan J); Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, 94-5 [129]-[130] (McHugh J); Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38, 99 [156] (plurality); Roberts v Harkness (n 59) [50]; Judicial Review of Administrative Action (n 73) [7.280].

[81] See Sullivan v Department of Transport [1978] FCA 48; (1978) 20 ALR 323, 343 (Deane J); Ex parte Lam (n 76) 14 [37] (Gleeson CJ); Roberts v Harkness (n 59) [47].

[82] See paragraph [4] of this judgment.

[83] See definition of 'vexatious proceeding' para (a): VPA (n 25) s 3.

[84] 'may grant... leave...': VPA (n 25) s 55; Interpretation of Legislation Act 1984 (Vic) s 45.

[85] [1997] VSC 35; (1997) 95 A Crim R 272, 287 ('Rich v Groningen').

[86] In fact, Mr Castle had been replaced by Ms Sellman as General Manager of PPP on 26 July 2019.

[87] Affidavit of Julian Knight of 21 January 2020 [4] ('Mr Knight's affidavit of 21 January 2020').

[91] Ibid [8]. On the other hand, Ms Sellman says that the arrangements varied over this period - see below.

[93] Ibid [10]. I observe that 33 cases are listed. They are cases from the High Court, the Federal Court and the Supreme Court of Victoria, including a category of Supreme Court cases involving Mr Knight's access to a computer (13 cases), as well as cases from the United Kingdom and the USA.

[110] See definition of 'proceeding' para (b): VPA (n 25) ss 3, 5, 54; Knight v Wilson (n 52) [18]; Knight v The Queen (n 7) [3].

[111] As already mentioned, during that period, PPP had been in a lockdown and prisoners had been unable to access computer facilities at the library.

[112] Ms Sellman's affidavit of 9 April 2020 [14].

[113] As indicated above and as further mentioned below, Mr Knight takes issue with the characterisation of what occurred as being a 'reinstatement' of the prisoner computer system at PPP.

[114] It appears that this occurred in or about early June 2018.

[115] Ms Sellman's affidavit of 9 April 2020 [20].

[122] Ibid [28]. See also at [36]-[38].

[126] This assertion is supported by paragraph 30 of Mr Castle's affidavit of 29 October 2018, where Mr Castle deposes that the images were being held in Mr Castle's office at that time for security reasons, with Mr Knight being free to request temporary access to them as he may require for the purposes of Knight v The Queen.

[127] Indeed, as mentioned above, the library was re-opened (under new conditions) on the very next working day, Monday 6 April 2020.

[128] Ms Sellman's affidavit of 9 April 2020 [32].

[131] As indicated above, a difference emerged between the parties after 3 March 2020 as to the sufficiency of the access to files that had been offered to Mr Knight.

[132] Ms Sellman's written submissions of 9 April 2020 [7]-[8].

[133] Most recently in Knight v Castle (n 4) (Moore J).

[134] Knight v Hastings [2010] VSC 99, [149] (Robson J) ('Knight v Hastings').

[135] Rich v Groningen (n 85) 286-8.

[136] Knight v Hastings (n 134) [192] (Robson J).

[137] Ms Sellman's affidavit of 9 April 2020 [26], [39].

[142] Knight v Hastings (n 134) [191] (Robson J).

[143] Fyfe v South Australia [2000] SASC 84 [18] (Martin J).

[144] Knight v Governor, Port Phillip Prison [2014] VSC 10 (Rush J).

[145] Written submissions of Julian Knight dated 24 April 2020 ('Mr Knight's written submissions of 24 April 2020'). The document was forwarded to the Court under cover of a letter dated 24 April 2020 in which Mr Knight said: 'As per order 3 of the orders made by the Honourable Associate Justice Daly on 3 April 2020, please find attached my submissions in relation to this matter'. As indicated above, having regard to the entire history of this matter, and to the contents of the party's respective materials, including Mr Knight's written submissions dated 24 April 2020 themselves, I considered that Mr Knight had had more than a reasonable opportunity to address his application for leave to commence a proceeding generally. I was of that view notwithstanding the reference in Mr Knight's covering letter to the third paragraph of the order made by Daly AsJ on 3 April 2020. Accordingly, as already mentioned, I vacated the hearing scheduled for the next morning (29 April 2020) and proceeded to consider the whole of Knight v Sellman on the papers.

[146] Mr Knight's written submissions of 24 April 2020 [1].

[147] It appears that this is a reference to the two cases in the AAT that have been consolidated as mentioned above.

[148] There appears to be no prior reference in any document in Knight v Sellman to a proposal to prepare a claim relating to Mr Knight's service in the Australian Army.

[149] That statement is difficult to reconcile with Mr Knight's own evidence about the access he did have to a personal in-cell computer from 8 December 2017 to 15 January 2018, while the prison was responding to the fire: see Mr Knight's affidavit of 21 January 2020.

[150] Here he refers to Knight v Wise (n 27) [81] (Hollingworth J). I note that nothing in paragraph [81] of Knight v Wise supports, or even relates to, the proposition that hundreds of other prisoners in Victoria have been granted access to a personal in-cell computer. Perhaps Mr Knight was intending to refer to paragraphs [72]-[73] of the judgment of Hollingworth J in Knight v Wise. Her Honour there notes that there was evidence before her that more than 300 other prisoners had applied for, and been granted, in-cell access to computers. However, that was no more than evidence put forward by Mr Knight. As her Honour recorded, the proposed defendant had chosen to put no material before the Court at all, relying on only a brief letter to Mr Knight explaining the decision that had been made on that occasion.

[151] Any implicit suggestion here that Mr Knight has been inappropriately singled out for special treatment in relation to his applications for an in-cell computer has been rejected previously by the corrections authorities. An attempt by Mr Knight to establish the contrary in this Court was unsuccessful: Knight v Deputy Commissioner, Corrections Victoria [2012] VSC 506, [30], [48]-[52] (Kyrou J) ('Knight v Deputy Commissioner, Corrections Victoria'); affd [2012] VSCA 315 [51]-[53]. Moreover, in paragraph 26(b) of Mr Castle's affidavit of 29 October 2018, Mr Castle deposed that no other prisoner at PPP is afforded a dedicated computer or laptop. In any event, Mr Knight's contention about what other prisoners have had goes nowhere in this case.

[152] Mr Knight's written submissions of 24 April 2020 [6].

[153] Mr Knight's assertion that no restrictions were placed on the use of the laptop is inconsistent with the affidavit of Mr Castle of 29 October 2018 in which Mr Castle deposes that the CD drive of the computer was disabled for security reasons and because of Mr Knight's 'continued abuse of the computer privilege'.

[154] Mr Knight's written submissions of 24 April 2020 [7]-[14].

[155] This is a reference to the abovementioned three applications filed in 2013.

[156] This must be a reference to Knight v The Queen.

[157] Mr Knight's written submissions of 24 April 2020 [16]-[23].

[158] [2010] VSCA 203; (2010) 31 VR 567 ('Commissioner, Corrections Victoria v Knight').

[159] However, Mr Knight does not make any challenge to the Commissioner's Requirement as part of the Knight v Sellman proceeding.

[160] Mr Knight's written submissions of 24 April 2020 [17].

[164] Reference is made to Rowson v Corrections Victoria (S ECI 2020/01395) and Rowson v Secretary, Department of Justice and Commissioner, Corrections Victoria (S ECI 2020/01530).

[165] Mr Knight's written submissions of 24 April 2020 [24].

[167] The observation in parentheses is, of course, Mr Knight's, not Mr Reaper's. There is a distorted screen print attached to Mr Knight's written submissions.

[168] Of course, Mr Knight is at present nowhere near having on foot a 'belated appeal against conviction and sentence': see Knight v The Queen (n 7) [15]-[21] (Richards J).

[169] Mr Knight's written submissions of 24 April 2020 [26] (emphasis added).

[170] Ms Sellman's affidavit of 9 April 2020 [24].

[171] Mr Knight's written submissions of 24 April 2020 [27] (emphasis added).

[173] Ms Sellman's affidavit of 9 April 2020 [26].

[174] I note that this reference by Mr Knight himself to the removal of his parole eligibility in 2014 sits ill with Mr Knight's failure to withdraw or discontinue the three applications of 2013 and with his commencement of the application for leave in Knight v Cassar, discussed above.

[175] Presumably, Mr Knight is here referring only to his 'repeated' applications to access a computer on an 'in-cell' basis after the in-cell computer in question was removed from his possession in January 2018. Even so, this appears to be the first occasion on which Mr Knight has asserted that the basis of his 'repeated' applications was to complete the conversion process. Mr Knight had made a multitude of applications for an in-cell computer prior to the short period in which he actually had an 'in-cell' computer. Obviously, those earlier applications had nothing to do with completing the process of converting the PDF documents into individual images. And Mr Knight does not appear to have ever said before (either in prison documents or Court documents) that he wanted a computer on an 'in-cell' basis to begin the process of converting the PDF documents into individual images.

[176] Of course, Mr Knight is at present nowhere near having on foot any appeal against convictions: see Knight v The Queen (n 7) [15]-[21] (Richards J).

[177] It appears that this is simply untrue: see the above references to what Mr Castle said in his affidavit of 29 October 2018 about the way in which the photographic images had been held within PPP in the past.

[178] Mr Knight's written submissions of 24 April 2020 [32].

[180] I mention again that the parallels with the application in Knight v Sellman are obvious.

[181] Mr Knight's written submissions of 24 April 2020 [34] (emphasis added).

[183] Of course, Ms Sellman has identified many answers to that question in her material.

[184] Mr Knight's written submissions of 24 April 2020 [37].

[185] However, any discrepancy is a matter of no moment for present purposes.

[186] Mr Knight provides absolutely no supporting material for this proposition.

[187] Mr Knight's written submissions of 24 April 2020 [39].

[189] Mr Knight does not explain how or why he might have a need to gain immediate access to the disk in drafting submissions in the prison library. Nor does he explain how or why he would have any difficulty in gaining immediate access to it if he truly needed such access.

[190] But see my corresponding comments above.

[191] Ms Sellman's written submissions of 9 April 2020 [9(b)].

[192] Ms Sellman had cited Knight v Hastings (n 134) [149] (Robson J) in this regard.

[194] No authorities are cited for these particular propositions.

[197] Mr Knight's written submissions of 24 April 2020 [44]-[48].

[198] This is the first and only mention by Mr Knight of the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('Charter').

[200] See also Constitution Act 1975 (Vic) s 85(3).

[201] Slaveski v Victoria [2009] VSCA 6, [50] ('Slaveski').

[202] Reid v Howard (1995) 184 CLR 1, 16 (Toohey, Gaudron, McHugh and Gummow JJ) ('Reid v Howard'); Slaveski (n 201) [50].

[206] [2018] NSWCA 143; (2018) 98 NSWLR 113 ('Liristis').

[207] Ibid 128 [64]-[65] (citations omitted).

[208] Cf Corrections Act 1986 (Vic) s 47.

[209] See Rich v Howe [2017] VSC 483,[63]-[71] (Kennedy J) ('Rich v Howe') and the cases there cited.

[210] See, eg, Knight v Deputy Commissioner, Corrections Victoria (n 151) [49]-[51] (Kyrou J); affd [2012] VSCA 315; Knight v Wise (n 27) (Emerton J); Knight v Money (n 6) [20].

[211] Mr Knight's written submissions of 24 April 2020 [42].

[213] Minister for Immigration and Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332, 351 (French CJ).

[214] Mr Knight's written submissions of 24 April 2020 [56]-[57].

[216] Cf Raymond v Honey [1983] 1 AC 1 ('Raymond v Honey').

[221] Australian Law Reform Commission, Traditional Rights and Freedoms - Encroachments by Commonwealth Laws (Report No 129, December 2015), ch 8_._

[222] Criminal Procedure Act 1986 (NSW) s 294A.

[223] Charter (n 198) s 7.

[224] Liristis (n 206) [66]-[69], [71]-[72] (Basten JA).

[226] [2017] UKSC 51; [2017] 3 WLR 409.

[227] Liristis (n 206) 130-1 [73]-[75].

[229] [1989] HCA 46; (1989) 168 CLR 23 ('Jago').

[230] [1992] HCA 57; (1992) 177 CLR 292 ('Dietrich').

[231] Liristis (n 206) 131-2 [79].

[234] Commissioner, Corrections Victoria v Knight (n 158) [14] (Nettle JA), [34] (Maxwell P).

[235] See Rich v Secretary, Department of Justice [2007] VSC 405 (Mandie J); Knight v Money (n 6) [8], [19], [27] (Byrne J); Rich v Secretary, Department of Justice (No 3) [2011] VSC 224 (Whelan J); Rich v Ryan [2016] VSCA 337, [14]-[16] and cases there cited; Rich v Howe (n 209) [173]-[178] (Kennedy J); Proudfoot v DPP (Vic) [2020] VSCA 138.

[236] [2020] VSCA 138 ('Proudfoot v DPP').

[239] Proudfoot v DPP (n 236) [48].

[240] Ibid [6], [47].Cf Hamzy v Commissioner, Corrective Services and New South Wales [2020] NSWSC 414, [69]-[71].

[242] Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, 436.

[243] Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 151-2 [135]; Edwards v State Trustees Ltd (2016) 54 VR 1, [147].

[244] Mr Knight's written submissions of 24 April 2020 [56], referred to in [180] of this judgment above.

[245] [2015] VSCA 197; (2015) 48 VR 129 (Court of Appeal) ('Bare').

[246] [2016] VSC 796; (2016) 51 VR 473, 516 [228], 537-8 [321(6)] (Garde J); affd Minister for Families and Children v Arthur (2016) 51 VR 597, 599 [5], 601 [17], 623 [105]-[107] (Warren CJ, Maxwell P, Weinberg JA).

[247] (2017) 52 VR 441, [550], [553], [556], [583]-[586] (John Dixon J).

[248] Rich v Howe (n 209) [86]-[171] (Kennedy J). But see the concessions recorded by Kennedy J at [88]-[89] and the assumption made by her Honour at [90]. Her Honour referred at [94] to Slaveski (n 201). That was a decision of the Court of Appeal on a referral to it of a question of law under s 33 of the Charter (n 198) by the County Court in relation to an appeal from the Magistrates' Court in a criminal proceeding. The Court of Appeal held at [58] that, in the first instance, it was a matter for the County Court Judge to determine whether the Judge would be warranted by s 24(1) of the Charter (or at common law) in staying the appeal until legal representation was provided for the accused.

[250] Ibid 250 [375] fn 328. Cf Islam v Director-General, Department of Justice and Community Safety Directorate [2018] ACTSC 322 [30] (McWilliam AsJ) in relation to the Human Rights Act 2004 (ACT).

[251] Liristis (n 206) 129 [69], replicated at [197] of this judgment.

[252] Mr Knight's written submissions of 24 April 2020 [44]-[45], replicated at [173] of this judgment.

[253] British Columbia Government Employees Union v Attorney-General of British Columbia [1988] 2 SCR 214; R v Gordon (1988) 130 CCC (3d) 129.

[254] See, for example, my judgment in Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] VSC 275; (2013) 234 IR 59, 102 [336]; Brown v Tasmania (2017) 261 CLR 328, 453-4 [388]-[389].

[255] Kay v A-G (Vic) (Court of Appeal, Nettle JA and Coghlan AJA, 19 May 2009) [11]-[13] (Nettle JA, with whom Coghlan AJA agreed); quoted in A-G (Vic) v Kay [2009] VSC 337 [12] (Cavanough J).

[259] See Knight v Wise (n 27) [32]-[43] (Emerton J), especially at [41]. Cf Commissioner, Corrections Victoria v Knight (n 158) [16], [33].

[261] Bare (n 245) 250 [375] fn 328.

[263] Before the enactment of the VPA (n 25).

[265] Commissioner, Corrections Victoria v Knight (n 158) [18], [25] (Nettle J), [27] (Maxwell P); Clark v Commissioner for Corrective Services [2016] NSWCA 186, [12]-[14] (Basten JA).

[266] It seems from Mr Knight's material that Ms Sellman was mistaken in her belief that there may also be a FOI matter pending at VCAT.

[267] Knight v The Queen (n 7) [3], [9].

[269] Knight v The Queen (n 7) [10].