Applicant v Proposed Respondent

Applicant v Proposed Respondent - [2020] VSC 320 - VSC 2020 case summary — Zoe

[30]

...

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:

[43]

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).

[44]

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.

[61]

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:

[66]

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]

[76]

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.

[112]

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).
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].
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.
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.
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:

[142]

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.

[174]

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.

[193]

(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]

[203]

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.

[248]

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.
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.
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.
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]

[271]

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]
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]
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.
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]
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.
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.
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.
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.
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:

[289]

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.
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'.
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:

[297]

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]
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.
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]
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.
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.
There are several additional or related reasons why Knight v Sellman should be dismissed.
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.
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.
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]
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.
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.
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.
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.
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.
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.
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.
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.
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.
For the many reasons identified above, Knight v Sellman must be dismissed.

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