Applicant v Respondent

2 The applicant brings an application pursuant to s 54 of the VP Act for leave to apply to the Victims of Crime Assistance Tribunal ('VOCAT'), seeking special financial assistance due to an alleged incident of sexual assault which occurred when he was a child. The content of that allegation is set out in the affidavit affirmed 9 December 2015 which accompanies the application for leave to commence proceedings.

3 In brief, the applicant alleges that in 1981, when he was 13 years of age, he took a bus trip from Melbourne to Canberra with his younger siblings to visit their father. During that trip he was seated next to a 23-year-old woman who was a schoolteacher. The bus was stopped in Wodonga so that passengers could have lunch. The applicant deposes that after the other passengers left the bus, the woman asked the applicant if he wished to have sex with her, and then proceeded to perform sexual acts upon him. The applicant deposes that within weeks of the alleged assault occurring he became aware that the woman in question had been charged with committing sexual offences against minors, that those offences had occurred in the context of her employment as a school teacher and that sometime later he read a newspaper report which detailed the woman's conviction on those charges. He deposes that the recent activities of the Royal Commission into Institutional Responses to Child Sexual Abuse have caused him to think more often upon the events outlined above.

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

(a) the applicant's affidavit dated 9 December 2015; and

(b) the applicant's outline of submissions dated 20 May 2016.

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. There are no exceptional circumstances which render it appropriate in the interests of justice that an oral hearing occur.

Vexatious Proceedings Act 2014 (Vic) (the 'VP Act')

6 Section 56(1) of the 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 -

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

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

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

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

7 The applicant requires the leave of this Court in order to commence the proposed proceeding. Pursuant to s 55 of the VP 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.

8 A 'vexatious proceeding' is defined in s 3 of the VP Act as:

(a) a proceeding that is an abuse of 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.[4]

9 The applicant bears the onus of proving the proposed proceeding is not vexatious and that it has reasonable grounds.[5] The latter element requires that the application establishes a 'real or reasonable prospect that his claim for relief can succeed'.[6] There is a residual discretion to refuse leave.[7]

Victims of Crime Assistance Act 1996 (Vic) (the 'VOCAA')

10 Applications to VOCAT are governed by Part 3 of the VOCAA, s 25 of which provides that an application may be made by a primary victim, a secondary victim or a related victim of an act of violence. The time for making that application is governed by s 29, which provides as follows:

(1) An application must be made within 2 years after the occurrence of the act of violence or, in the case of an application by a related victim or a person who has incurred funeral expenses, within 2 years after the death of the primary victim.

(2) The Tribunal must strike out an application made out of time unless it considers that, in the particular circumstances, the application ought not to be struck out.

(3) In determining whether to further hear and determine an application made out of time, the Tribunal must have regard to -

(a) the age of the applicant at the time of the occurrence of the act of violence;

(b) whether the applicant is intellectually disabled within the meaning of the Disability Act 2006 or mentally ill within the meaning of the Mental Health Act 2014;

(c) whether the person who committed, or is alleged by the applicant to have committed, the act of violence was in a position of power, influence or trust in relation to the applicant;

(d) the physical or psychological effect of the act of violence on the applicant;

(e) whether the delay in making the application threatens the capacity of the Tribunal to make a fair decision;

(f) whether the applicant was a child at the time of the occurrence of the act of violence and the application was made within a reasonable time after he or she reached the age of 18;

(g) all other circumstances that it considers relevant.

(4) The Tribunal must not decide to further hear and determine an application made out of time only because the applicant was unaware of this Act or of the Criminal Injuries Compensation Act 1983 or the Criminal Injuries Compensation Act 1972 or of the time within which applications must be made under any such Act.

Pursuant to s 31 of the VOCAA any question of fact to be decided by the Tribunal on, or in relation to, an application under the Act is to be decided on the balance of probabilities.

11 The VOCAA provides for a mandatory refusal of an application by the Tribunal if it is satisfied that the act of violence complained of was not reported to police within a reasonable time, unless the Tribunal is satisfied that that result was brought about by special circumstances.[8] In determining what constitutes a 'reasonable time' for reporting, the Tribunal may have regard to any matters that it considers relevant, including the age of the victim at the time of the offence, whether the person who committed the act of violence was in a position of power or influence in relation to the victim,[9] and the nature of the injury alleged to have been suffered.[10]

12 Finally, s 54 of the VOCAA requires that the Tribunal, in determining whether or not to make an award of assistance must have regard to certain factors including:

(a) the character, behaviour (including past criminal activity and the number and nature of any findings of guilt or convictions) or attitude of the applicant at any time, whether before, during or after the commission of the act of violence;

...

(f) any other circumstances that it considers relevant.

13 The affidavit filed by the applicant in support of his application for leave is brief. It refers to the applicant's status as a declared vexatious litigant, and contains a list of applications to commence or continue proceedings which have been determined subsequent to the extension of the general litigation restraint order in October 2014. The listed applications number 11 in total. The applicant states that the instant application differs from those listed, in that it is 'based on a different cause of action and it has reasonable grounds'. In the affidavit the applicant then details the alleged sexual assault upon which the proposed application is based, as outlined above.

14 The applicant was invited to file any written submissions upon which he wished to rely in support of the application. In particular, it was suggested that the applicant address ss 29, 52, 53 and 54 of the VOCAA. It was also suggested that he make submissions as to s 56 of the VP Act, as the list of previous applications in the affidavit which purported to satisfy the s 56 requirements was inadequate, containing no details and dating back no further than early 2015.

15 The applicant provided submissions which expand upon his proposed claim. The applicant refers to one of the objectives of the VOCAA, namely to 'pay certain victims of crime financial assistance (including special financial assistance) as a symbolic expression by the State of the community's sympathy and condolence for, and recognition of, significant adverse effects experienced or suffered by them as victims of crime'.[11] He submits that the offences the subject of the instant application pre-dated the offences for which he remains imprisoned by over six years; and that it is not uncommon for sexual offences involving children to remain unreported until many years after the event. He further submitted that the proposed respondent, having been established specifically to determine applications for financial assistance by victims of crime, is in the best position to determine the plaintiff's proposed application, including whether there are circumstances which justify the making of an award of assistance despite the proposed application being out of time and the failure by the applicant to report the alleged assault to police. The applicant submits that it is not the Court's role to 'second-guess' what the proposed respondent's decision in respect of the application would be. The applicant made no submission in relation to s 54 of the VOCAA, nor is s 56 of the VP Act referred to in submissions by the applicant.

16 Notwithstanding the applicant's failure to provide comprehensive information as to his previous leave applications under s 56 of the VP Act, I am satisfied that the application under consideration raises matters which have not been the subject of any previous application for leave to proceed, or of any proceedings commenced which have been stayed or dismissed previously. Zammit J, in determining one of the applicant's applications for leave to proceed under the VP Act, concluded that a failure to comply with the requirements of s 56 could provide grounds for the application to be struck out.[12] Given the finding that I shall ultimately make in respect of this application, I do not need to decide whether such a course is appropriate in this instance.

17 I note, for the record, the judgment of Mossop M in Re Knight, a proceeding in the Supreme Court of the Australian Capital Territory in which Mr Knight, in June 2014, made an application for criminal injuries compensation in relation to injuries alleged to have been suffered by him in 1987.[13] The applicant did not disclose that proceeding on the current application.

18 The alleged assault occurred 35 years ago. The proposed application would be made over 30 years out of time. If it is allowed to proceed, the application will be struck out unless the Tribunal considers that, in the particular circumstances of the application, that should not occur. The inclusive list of matters to which the Tribunal must have regard in relation to the strike out issue is contained in s 29(3) of the VOCAA. The following factors weigh heavily against Mr Knight's proposed application surviving s 29 of the VOCAA. First, the very lengthy delay in bringing the application will threaten the capacity of the Tribunal to make a fair decision. Second, the effect of that delay is compounded because the alleged assault has not been reported to police. It is highly unlikely the Tribunal could now expect to receive material from a police investigation which would significantly assist it making a fair decision and therefore ameliorate the effect of the delay. Third, Mr Knight does not point to any significant corroborative evidence which would assist a Tribunal to judge the veracity of his allegations. Fourth, although Mr Knight was a child at the time of the alleged assault, there has been a further delay of over 29 years in making the proposed application since he turned 18. Fifth, Mr Knight is an experienced litigator, he has commenced or attempted to commence over 50 legal proceedings during the last two decades. This includes the criminal injuries compensation application made in the ACT in mid 2014. In the circumstances, it is unlikely that the Tribunal will accept as an explanation for the delay by Mr Knight that he only thought more about the alleged assault because of the Royal Commission into Institutional Responses to Child Sexual Abuse. Sixth, Mr Knight has not pointed to any physical or psychological effect of the alleged assault as an explanation for delay in making this application. Seventh, for the reasons which follow, Mr Knight's substantive application has no significant merit. In combination these reasons result in the overwhelming likelihood that if this proposed application were allowed to proceed it would be struck out by the Tribunal pursuant to s 29 of the VOCAA.

19 If Mr Knight's proposed application were to avoid strike out, it is very unlikely an award of assistance would be made. For similar reasons given in relation to the s 29 issue, a tribunal is likely to refuse to make an award of assistance because of Mr Knight's failure to report the alleged assault to police within a reasonable time. If the proposed application were to survive that issue then Mr Knight's criminal history would weigh overwhelmingly against an award being made to him. As Mr Knight submits, the object of the Act requires consideration of whether he as applicant is an appropriate recipient of a symbolic expression by the State of the community's sympathy. Mr Knight's criminal history is relevant, even though it post-dates the alleged offence. Having regard to the nature of offences committed by Mr Knight, it is very unlikely that the Tribunal would consider him an appropriate recipient of a monetary expression of the community's sympathy.

20 The applicant has not discharged his onus of satisfying me that there are reasonable grounds to commence the proposed proceeding as required by s 55(b). A proceeding commenced without reasonable grounds is a 'vexatious proceeding' as defined by s 3 of the VP Act, the applicant has therefore failed to satisfy me, as required by s 55(a), that the proposed application is not a vexatious one.

21 The application for leave to apply to VOCAT for special financial assistance is refused. There will be orders accordingly.

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

[2] Attorney-General (Victoria) v Knight [2014] VSC 549 (16 October 2014).

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

[4] Vexatious Proceedings Act 2014, s 3.

[5] Knight v Thomas [2015] VSC 283 (3 July 2015) [21], [25]; Knight v Money [2015] VSC 105 (24 March 2015) [12].

[6] Knight v Corrections Commissioner [2016] VSC 50 (18 February 2016) [98], [100].

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

[8] Victims of Crime Assistance Act 1996 (Vic), s 52(a)(i).

[9] Section 53(a).

[10] Section 53(e).

[11] Section 2(b).

[12] Knight v Thomas [2015] VSC 283 (3 July 2015) [31]; see also Knight v Corrections Commissioner [2015] VSC 545 (9 October 2015) (McDonald J).

[13] Re Knight (2014) 292 FLR 389.