Applicant v Respondent

1 The prospective applicant, Mr Julian Knight ('the applicant'), is currently incarcerated at Port Phillip Prison in Truganina, Victoria, serving a sentence of life imprisonment for a number of murders he committed in 1987. The applicant has been declared a 'vexatious litigant' pursuant to s 29 of the Vexatious Proceedings Act 2014 (Vic) (VP Act) and is subject to a general litigation restraint order pursuant to ss 29 and 91 of the VP Act, the effect of which is that he requires the leave of this Court to commence a proceeding.[1] That Order was extended indefinitely by further Order made on 30 August 2016.[2]

2 By application dated 14 September 2015 the applicant seeks leave, pursuant to s 54 of the VP Act, to commence an application for review by the Victorian Civil and Administrative Tribunal (VCAT) of a decision made by the Freedom of Information (FOI) Commissioner on 13 August 2015. By letter dated 23 October 2015 the Chambers of T Forrest J invited the applicant to provide further submissions in relation to the requirements of s 55 of the VP Act.[3] No response was received from the applicant by the Court. His Honour noted the applicant bore the onus in relation to the s 55 requirements, and concluded that on the limited material provided by the applicant that onus had not been discharged. On 27 January 2016 His Honour proceeded to determine this application 'on the papers'. His Honour ordered that the application be struck out with a right of reinstatement.[4] The applicant then filed a further affidavit affirmed by him on 1 February 2016 and written submissions of the same date. On the basis of that further material I made an Order on 4 May 2016 reinstating the application. At the same time I ordered that the applicant give notice of the application to the respondent, and I provided a timetable for the filing of submissions and further material by the respondent and the applicant.

3 The factual background to this application is set out in the judgment of T Forrest J of 27 January 2016.[5] In brief, the applicant completed a 'High Intensity Violence Intervention Program' (VIP) at Port Phillip Prison in October 2013. A completion report was finalised in relation to the VIP on 23 September 2014 (the VIP Report). The applicant deposes that on 2 March 2015 he was permitted to read an unedited copy of the VIP Report under the supervision of the report's author. On 3 March 2015 the applicant made application pursuant to the Freedom of Information Act 1982 (Vic) (FOI Act) to the Department of Justice for access to the VIP Report. On 2 April 2015 an FOI Officer determined to release to the applicant a redacted copy of the first page of the VIP Report, but otherwise denied the applicant access to the report. On 9 April 2015 the applicant requested a review of the Department's decision by the FOI Commissioner. On 13 August 2015 the Commissioner refused access to the document in full pursuant to s 38 of the FOI Act. The applicant now seeks leave to make application to VCAT for review of the decision of the FOI Commissioner. The respondent opposes the granting of leave.

4 The material available to the Court relevant to this application was:

(a) affidavits of the applicant affirmed 14 September 2015 and 1 February 2016;

(b) applicant's submissions dated 1 February 2016 and submissions in reply dated 15 July 2016;

(c) affidavit of Linsey Walker affirmed 1 July 2016; and

5 The above material enables me to determine this application in accordance with s 63(1) of the VP Act. I will determine the application without conducting an oral hearing.

6 Section 56(1) of the VP Act requires an applicant subject to a general litigation restraint order to disclose by affidavit the following details when making an application for leave to proceed:

(a) details of each application for leave to proceed made by the person;

(b) details of each application for leave to commence or continue a proceeding made by the person under section 21 of the Supreme Court Act 1986, as in force immediately before its repeal;

(c) details of each interlocutory application made or proceeding commenced or conducted by the person-

(a) that is a vexatious application or a vexatious proceeding; or

(b) which has been stayed or dismissed on the basis of being made, commenced or conducted without merit;

(d) an explanation as to how the application for leave to proceed is materially different to each application referred to in paragraph (a), (b) or (c) (if any);

(e) all other facts material to the application, whether in support of or adverse to the application, that are known to the person.

A Victorian court or tribunal may dismiss an application for leave to proceed made by a person if the Victorian court or tribunal is not satisfied that the application is materially different to a previous application made by that person.

8 The applicant in his two affidavits and in submissions filed 1 February 2016 purports to address the requirements of s 56 of the VP Act by listing a number of applications brought by him for leave to commence or continue a proceeding under s 21 of the Supreme Court Act 1986 and s 55 of the VP Act.

9 In written submissions dated 1 July 2016, the respondent argues that the 1 February affidavit 'does not fully comply with the requirements of s 56 of the VP Act' as it 'does not give the "details" of each application, including the subject matter or outcome of each application, nor does it provide an explanation as to how the application for leave to proceed is materially different to each application.' However, the respondent concedes that the current application for leave to proceed relates to specific subject matter (that is, access to a specific document under the FOI Act) which has not been the subject of a previous application.

10 I accept the respondent's submissions that material filed by the applicant in support of this application does not disclose the details of previous applications as required by s 56(1) of the VP Act. However, I am satisfied that the current application is materially different to each of Mr Knight's previous applications because it relates to access to a document (the VIP Report) which has not been the subject of any previous application by him. In the circumstances I will not dismiss the application pursuant to s 58 of the VP Act.

11 The applicant's general litigation restraint order requires the leave of this Court in order to commence a proceeding. Pursuant to s 55 of the Act, the Court may grant leave only if satisfied that:

(a) the proceeding is not a vexatious proceeding; and

(b) there are reasonable grounds for the proceeding.

12 A 'vexatious proceeding' is defined in s 3 of the VP Act and includes the following:

(a) a proceeding that is an abuse of the process of a court or tribunal;

(b) a proceeding commenced to harass or annoy, to cause delay or detriment, or for another wrongful purpose;

(c) a proceeding commenced or pursued without reasonable grounds;

(d) a proceeding conducted in a way so as to harass or annoy, cause delay or detriment, or to achieve another wrongful purpose.

13 The applicant bears the onus of proving the proposed proceeding is not vexatious and that it has reasonable grounds.[6]

(a) each VCAT review of a FOI decision must be considered, de novo, on its own facts. On review of a decision by VCAT, the Tribunal's task is the same as that of the primary decision-maker. It cannot be said, in those circumstances, that the proposed application is foredoomed to fail;

(b) there is a 'public interest override' power in s 50(4) of the FOI Act pursuant to which access may be given to documents found to be exempt pursuant to other sections of the FOI Act. Because the public interest override depends on the circumstances of the case it cannot be said that the application is doomed to fail;

(c) he has previously been granted leave to proceed with similar applications and this application for leave to proceed is materially different to each previous application made by him, principally because it relates to a different document.

(a) the applicant has not discharged his onus of proof in relation to the requirements of s 55 of the VP Act by satisfying the Court that the proceeding is not a vexatious proceeding and that there are reasonable grounds for the proceeding;

(b) the proposed application would be 'foredoomed to fail' and is therefore an abuse of process[7] because there is no serious prospect that VCAT would come to a different view than the view that was reached by the FOI Commissioner for the following reasons:

(i) section 38 of the FOI Act exempts from disclosure documents which are prohibited from disclosure by another Act. Pursuant to s 104ZZA of the Corrections Act 1986 (Vic) (Corrections Act), it is an offence for relevant persons (including employees of the Department of Justice) to disclose certain personal or confidential information. The phrase 'personal or confidential information' is widely and inclusively defined in s 104ZX of the Corrections Act and relevantly includes 'information relating to the personal affairs of a person who is or has been a prisoner', 'information relating to the classification of a prisoner under the [Corrections Act]' and 'information given to the Adult Parole Board that is not disclosed in a decision of the Board or in any reasons given by the Board for a decision of the Board'.

(ii) the FOI Commissioner found that, at the time of the Commissioner's decision, the VIP Report had been provided to the Adult Parole Board and fell within the definition of personal and confidential information for that reason;

(iii) the fact that the applicant has already read the VIP report does not affect the application of s 104ZZA of the Corrections Act and s 38 of the FOI Act as this occurred before the Report was provided to the Adult Parole Board;

(iv) given the clear application of s 104ZZA of the Corrections Act and s 38 of the FOI Act, there is no prospect that the applicant would receive a different outcome on any review of the decision in VCAT; and

(v) the applicant has not identified a basis upon which the public interest override would apply. Further, even if a public interest could be identified, the application of the prohibition on disclosure contained in s 104ZZA raises a serious question as to whether VCAT would have power to order access to a document on the basis of public interest.

(a) it would lead to an absurd result to apply the respondent's reasoning in relation to s 104ZZA of the Corrections Act that it would be a criminal offence to disclose 'personal or confidential information' about a prisoner to that prisoner;

(b) in circumstances where he has already seen the document and where the document was not relevant to any decision of the Adult Parole Board, the finding of the FOI officer and the finding of the FOI Commissioner that the VIP Report was exempt from disclosure as a result of s 38 of the FOI Act and s 104ZZA of the Corrections Act is reviewable on factual grounds alone;

(c) previous decisions recognise public interest in relevant issues including the fair and humane treatment of prisoners, rehabilitation of prisoners and openness and transparency in the management and administration of prisons. Assessment of public interest requires that a tribunal consider the document in question. The respondent bears the onus of proving that the public interest override should not be invoked. In the circumstances, it cannot be said that the public interest argument is without merit; and

(d) the effect of the submission of the respondent would be to place all information provided to the Adult Parole Board beyond the law.

17 It is convenient to now set out further relevant statutory provisions. First are the provisions of the FOI Act:

(1) The object of this Act is to extend as far as possible the right of the community to access to information in the possession of the Government of Victoria and other bodies constituted under the law of Victoria for certain public purposes by -

(a) making available to the public information about the operations of agencies and, in particular, ensuring that rules and practices affecting members of the public in their dealings with agencies are readily available to persons affected by those rules and practices; and

(b) creating a general right of access to information in documentary form in the possession of Ministers and agencies limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by agencies.

(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.

13 Right of access

Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to -

(a) a document of an agency, other than an exempt document; ...

25 Deletion of exempt matter or irrelevant material

Where -

(a) a decision is made not to grant a request for access to a document on the ground that it is an exempt document or that to grant the request would disclose information that would reasonably be regarded as irrelevant to the request;

(b) it is practicable for the agency or Minister to grant access to a copy of the document with such deletions as to make the copy not an exempt document or a document that would not disclose such information (as the case requires); and

(c) it appears from the request, or the applicant subsequently indicates, that the applicant would wish to have access to such a copy -

the agency or Minister shall grant access to such a copy of the document.

38 Documents to which secrecy provisions of enactments apply

A document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications.

50 Applications for review by the Tribunal

...

(4) On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 29A, section 31(3), or in section 33) where the Tribunal is of the opinion that the public interest requires that access to the document should be granted under this Act.

18 The relevant provisions of the Corrections Act are:

104ZX

...

"personal or confidential information" includes the following -

(a) information relating to the personal affairs of a person who is or has been an offender or a prisoner;

(b) information relating to the classification of a prisoner under this Act;

...

(d) information given to the Adult Parole Board that is not disclosed in a decision of the Board or in any reasons given by the Board for a decision of the Board;

104ZY Authorisation to use or disclose information

...

(2) A relevant person may also use or disclose personal or confidential information in the following circumstances -

...

(b) with the authorisation, or at the request, of the person to whom the information relates;

104ZZA Offence to use or disclose personal or confidential information unless authorised

A person who is or has been a relevant person must not use or disclose personal or confidential information unless that use or disclosure is authorised under section 104ZY or 104ZZ.

Penalty: 120 penalty units.

19 The object of the FOI Act is to extend as far as possible the right of the community to access documents and information in the possession of the Government of Victoria or other relevant bodies. In Knight v Corrections Victoria Bell J stated:

Section 3(2) [of the FOI Act] states an important principle governing both the interpretation of the legislation and the exercise of the discretions which it confers. Similarly, s 16(1) positively requires Ministers and agencies to administer the Act with a view to maximising public access to information.

These provisions are not surplusage or merely aspirational. In Victorian Public Service Board (Vic) v Wright, speaking of the influence of the provisions on the scope of the then review jurisdiction of the County Court, the High Court said:

In the light of these sections it is proper to give to the relevant provisions of the Act a construction which would further, rather than hinder, free access to information. It is, in our view, evident that such a purpose would not be promoted by adopting a narrow construction of the appellate functions of the County Court under the act or by imposing any limitation upon the effect of its decisions beyond any limits plainly imposed by the Act itself.[8]

20 The documents which are exempt documents are identified in Pt IV of the FOI Act. If the VIP Report is a document to which s 104ZZA of the Corrections Act applies, then s 38 of the FOI Act would appear to result in that document being an exempt document for the purposes of the FOI Act. The starting point, pursuant to s 13 of the FOI Act, is that a person has no right of access to an exempt document.

21 However, that is not necessarily the end of the matter. For a number of reasons, I conclude that the applicant has available to him arguments which may succeed on an application to VCAT and which may then result in him having the right to access the whole or a part of the VIP Report. First, s 104ZZA is subject to authorisation to disclose pursuant to s 104ZY of the Corrections Act. The applicant is the person to whom the VIP Report relates. He has authorised or requested the release of the VIP Report. Arguably, disclosure of the report may, on that basis, be authorised by s 104ZY(2)(b) of the Corrections Act.

22 Second, consistent with the object of the FOI Act, s 25 of that Act requires that access be granted to a copy of the document where it is possible, by deletion, to render the copy not an 'exempt' document. It is possible the VIP Report contains personal or confidential information in relation to a person other than the applicant. If so, s 25 of the FOI Act and s 104ZY(2)(b) of the Corrections Act may in combination allow for release of a copy of the VIP Report to the applicant once the personal or confidential information relating to other persons is redacted.

23 Third, having regard to the object of the FOI Act, VCAT would be required on hearing an application by the applicant for release of the VIP Report, if it determined the report was an exempt document, to give consideration as to whether there was a sufficient public interest such as to require that access to the document should nonetheless be granted pursuant to s 50(4) of the FOI Act. In my view, the applicant in his submissions, in particular the reply submissions, has sufficiently raised the issue of 'public interest' such that it could not be said that application to release the VIP Report based on s 50(4) of the FOI Act was foredoomed to fail, and therefore an abuse of process. The respondent submits that there is a serious question as to whether VCAT has the power to order access to a document to which s 104ZZA of the Corrections Act applies pursuant to s 50(4) of the FOI Act. The acknowledgement by the respondent that there is a serious question to be determined is a concession, in my view, that on this point an argument raised by the applicant is not foredoomed to fail.

24 I conclude that the proposed application to VCAT for review of the decision of the FOI Commissioner made 13 August 2015 to refuse the applicant access to the VIP Report is not one that could be characterised as a vexatious proceeding, and that the applicant has established that there are reasonable grounds for the proceeding. The applicant has discharged the onus of establishing the requirements of s 55 of the VP Act. For these reasons I have decided to grant the applicant leave to apply to VCAT for review of the decision to refuse his application for access to the VIP Report. There will be orders accordingly.

[1] Attorney-General (Victoria) v Knight [2004] VSC 407 (19 October 2004).

[2] Attorney-General for State of Victoria v Knight [2016] VSC 488 (30 August 2016).

[3] As to the requirements see paragraph [11].

[4] Knight v Department of Justice [2016] VSC 7 (27 January 2016) [12]-[13].

[5] Knight v Department of Justice [2016] VSC 7 (27 January 2016).

[6] Knight v Money [2015] VSC 105 (24 March 2015) [12].

[7] Knight v Anderson [2007] VSC 278; (2007) 16 VR 532, 534 [7]; Walton v Gardiner (1993) 177 CLR 378, 393.

[8] [2010] VSC 338 (11 August 2010) [17]-[18] (citations omitted).