Attorney-General for the State of Victoria v Knight [2004] VSC 407

Supreme Court of Victoria|2004-10-19|Before: SMITH J

Practice and Procedure - vexatious litigant - prisoner - application to declare and restrain - relevant considerations - some past proceedings successful - alleged breaches of right to legal privilege.

By originating motion filed 19 December 2003 the Attorney-General seeks orders pursuant to s 21 of the Supreme Court Act 1986 that:

(a) the defendant Julian Knight be declared a vexatious litigant, and

(b) the defendant Julian Knight must not without leave of the Court commence, within the period of 10 years from this date, any legal proceedings (whether civil or criminal) in the Court, an inferior court or any tribunal.

Legislation

The relevant legislative provisions are contained in s 21 Supreme Court Act 1986 (the Act). They provide as follows:

(1) The Attorney-General may apply to the Court for an order declaring a person to be a vexatious litigant.

(2) The Court may, after hearing or giving the person an opportunity to be heard, make an order declaring the person to be a vexatious litigant if it is satisfied that the person has-

(a) habitually; and

(b) persistently; and

(c) without any reasonable ground-

instituted vexatious legal proceedings (whether civil or criminal) in the Court, an inferior court or a tribunal against the same person or different persons.

(3) An order under sub-section (2) may provide that the vexatious litigant must not without leave of-

(a) the Court; or

(b) an inferior court; or

(c) a tribunal constituted or presided over by a person who is a barrister and solicitor of the Court do the following-

(d) continue any legal proceedings (whether civil or criminal) in the Court, inferior court or tribunal; or

(e) commence any legal proceedings (whether civil or criminal) in the Court or any specified inferior court or tribunal; or

(f) commence any specified type of legal proceedings (whether civil or criminal) in the Court or any specified inferior court or tribunal.

(4) Leave must not be given unless the Court, or if the order under sub-section (2) so provides, the inferior court or tribunal is satisfied that the proceedings are not or will not be an abuse of the process of the Court, inferior court or tribunal.

(5) The Court may at any time vary, set aside or revoke an order made under sub-section (2) if it considers it proper to do so.

(6) The Attorney-General must cause a copy of any order made under sub-section (2) to be published in the Government Gazette.

(7) The Court, when exercising a power under this section, must be constituted by a Judge.

(8) The Court may, in determining whether to make an order under sub-section (2), take into account vexatious legal proceedings (whether civil or criminal) instituted before or after the commencement of the Supreme Court (Vexatious Litigants) Act 2003."

Under s 21 (2), before declaring a person a vexatious litigant, the Court must be satisfied that that person has habitually, persistently and without reasonable grounds instituted vexatious legal proceedings.

I accept that on the authorities, the institution of a proceeding occurs where an originating process is filed or an appeal is attempted in respect of a final determination in the proceeding or proceedings are taken which are in substance an appeal or an attempt to re-litigate a matter which had otherwise finally been determined. The expression does not include interlocutory applications and appeals on interlocutory applications.[1]

Counsel for Mr Knight submitted that "proceedings" did not include appeals because of the definition of proceedings" in s 3. It provides -

"'proceeding' means any matter in the Court other than a criminal proceeding."

His counsel submitted that the word "matter" should be interpreted to mean the dispute to which the proceeding relates and thus an appeal would be a continuation of the matter. In my view the word "matter" is used in lieu of "proceeding" in the definition which is intended to identify the type of proceedings to which the Act applies - proceedings other than criminal proceedings.

In determining whether a proceeding instituted is vexatious within the meaning of s 21, the test is an objective one and is whether the proceedings in themselves are vexatious. Vexatious proceedings include those brought for an improper purpose or proceedings which have been shown to be hopeless.[2] In Gallow v AG[3] it was said:

"In the light of the mischief to which the section is directed however it seems to me that the word `vexatious' is not in this context a term of art and is an omnibus expression which includes proceedings which are scandalous, which disclose no reasonable cause of action, which are oppressive, which are embarrassing, or which are an abuse of the process of the Court. All of such and similar proceedings in my opinion, fall within the meaning of the word `vexatious' in the statute."

Where, as here, reliance is placed upon past proceedings and the reasons given by the relevant court or tribunal for their dismissal, the character of the proceedings is to be considered by a consideration of the Court's reasons and orders and it is not necessary to re-examine the circumstances of each of the proceedings relied upon. The character of the proceedings should be apparent from the reasons and orders.[4]

As to the requirement that the person in question has habitually instituted the vexatious legal proceedings, what is required is that it be demonstrated that that person appears to have commenced such proceedings as a matter of course.[5]

The requirement of "persistently" suggests determination and an element of stubbornness.[6]

The final requirement is that the person has instituted vexatious legal proceedings without any reasonable grounds. That requirement will be satisfied if the proceedings are revealed to be hopeless but will have independent operation where, for example, the proceedings are instituted for an improper purpose.[7]

The defendant is a prisoner who was convicted on seven counts of murder and is serving life imprisonment . He was sentenced on 10 November 1988. A minimum non-parole term of 27 years was fixed. The proceedings that give rise to the present application concern matters that have arisen in the course of his custody.

The proceedings which are relied upon by the plaintiff can be divided into the following groups:

(A) Proceedings relating to a seizure of documents described as legal documents.

(i) Mr Knight filed an originating motion in proceeding number 7642 of 2001 on 19 September 2001. On 22 October 2001, Ashley J ordered the proceeding to be struck out.

(ii) Mr Knight appealed to the Court of Appeal on 31 October 2001 from the decision of Ashley J. On 23 July 2003 Ormiston and J D Phillips JJA dismissed that appeal.

(B) Proceedings concerning the return of legal material sent from Darebin Community Legal Centre

(i) On 30 July 2002 Mr Knight filed proceeding number 6596 of 2002 seeking the return of legal material sent from the Darebin Community Legal Centre to him and detained by the prison authorities. On 27 August 2002, Balmford J dismissed the application.

(C) Complaint under the Equal Opportunity Act.

(i) Mr Knight filed a complaint with VCAT (No A/24/2002) on 7 February 2001 under the Equal Opportunity Act. It was heard on 12 July 2002 by Deputy President Coghlan who dismissed the complaint.

(ii) On 20 August 2003 Mr Knight filed an originating motion (No 7221 of 2003) seeking an extension of time for leave to appeal from the decision of Deputy President Coghlan. On 14 November 2003, Kellam J dismissed the application.

(iii) On 23 November 2003 Mr Knight filed a notice of appeal to the Court of Appeal of the Supreme Court. On 4 January 2004, however, Knight withdrew the appeal.

(D) Review of decision under the Freedom of Information Act 1992.

(i) Mr Knight applied to VCAT to review a decision of CORE under the Freedom of Information Act 1982 refusing him access to some 99 documents. On 10 April 2003 Deputy President McNamara dismissed the application.

(ii) On 16 July 2003 Mr Knight filed an originating motion (No 6753 of 2003) seeking an extension of time to appeal and leave to appeal. This application was heard and dismissed on 10 September 2003 by Kellam J. On 23 February 2004 his Honour ordered costs against the defendant.

(E) Five proceedings heard by Cummins J.

(i) Five proceedings were heard by Cummins J, four of which are relied upon by the plaintiff. They concerned incidents occurring in the course of the defendant's custody. They are:

(a) Summons number 4596 of 2002 filed 27 February 2002 concerning three incidents including the finding of a sharpened prison issue knife on 21 July 2001 .

(b) Summons number 7945 of 2002 filed 30 October 2002 concerning the finding of certain items in the defendant's cell on 21 August 2002.

(c) Summons number 4002 of 2003 filed on 2 January 2003 concerning the finding of scissors in the defendant's cell on 22 November 2002.

(d) Proceeding by summons number 4003 of 2003 filed 2 January 2003 concerning the opening of legal practitioner mail in December 2002.

(e) Proceeding No 8621 of 2002 challenging a classification decision.

These proceedings were each dismissed by Cummins J on 7 October 2003.

(ii) Mr Knight filed applications for extension of time and leave to appeal to the Court of Appeal in each of the first four matters on 27 November 2003. On 5 December 2003, Buchanan and Chernov JJA dismissed the applications. He sought an extension of time and leave to appeal in the fifth matter and was successful on 5 December 2003.

I turn to consider the proceedings relied upon by the plaintiff in more detail. In particular, I will consider in each case whether the proceedings were vexatious.

Proceedings relating to a seizure of documents described as legal documents - originating motion number 7642 of 2001 ((A) above)

In this matter Mr Knight sought injunctions and a declaration, as to his rights of access to legal advice and communication, against the person who had been general manager of Barwon prison as at 10 August 2001 and the person who assumed that position on 3 September 2001. The prison authorities had seized a file of documents which according to Mr Knight had been prepared by him for his legal advisers for the provision of advice and other use in connection with an inquest to be held into the death of another prisoner by the name of Williamson. Mr Knight had said that he intended to seek leave to be represented at the inquest. He argued that in the circumstances the file was subject to legal professional privilege. Under Ashley J's guidance the matter was resolved to the extent that all but one document was returned to him. Having reached that point and not wishing to pursue recovery of the final document, Mr Knight sought declaratory relief in the form originally claimed. He argued that there were issues to be resolved about the right of a prisoner to legal professional privilege. His Honour took the view that the substance of the controversy having been resolved, it was inappropriate for declaratory relief to be given. There was the further difficulty that declaratory relief could only be given after a factual context had been established and that to embark on such an exercise was objectionable because the matter was now hypothetical. Accordingly, his Honour terminated the matter by striking out the originating motion. It may be said, however, that Mr Knight had achieved a major objective which was the return of the documents.

Mr Knight appealed against the decision. On 23 July 2003 an appeal took place before the Court of Appeal, comprising Ormiston and Phillips JJA. Mr Knight was represented by Dr Donaghue. The Court of Appeal endorsed as more than adequate the reasons advanced by Ashley J for not acceding to the request for a declaration. Their Honours went further to question whether there could be any necessary element of confidentiality which would attract the principles of legal professional privilege. Their Honours spoke of counsel having "valiantly sought to show why the judges `discretion' miscarried" and then went on to dismiss the argument that it was irrelevant for the judge, as he had explained, to take the position that he would have to consider contested questions of fact before he could grant the relief sought. Their Honours concluded

"One would not wish to deny the importance of the principle of legal professional privilege, but, as the judge rightly concluded, this was not a case in which the issue was sufficiently raised or could properly be resolved. It was and is a matter of `discretion', as it is understood in this field, whether a declaration can properly be granted, and it has not been shown that the judge erred in his application of accepted principle."[8]

The plaintiff does not contend that the original proceedings that were instituted were vexatious. The plaintiff does, however, contend that the documents having been returned, the defendant continued the proceedings by pressing for a declaration and the plaintiff contends that that was vexatious. He also contends that the appeal was hopeless and a vexatious proceeding.

Plainly the institution of the proceeding cannot be shown to be vexatious, it having succeeded in the major objective of obtaining the return of all but one of the documents. The seeking of the declaration, notwithstanding the return of the documents, cannot be regarded, in my view, as an institution of a proceeding and accordingly cannot itself be taken into account for the purpose of s 21(1) as a vexatious proceeding. Nor do I think that it can be relied upon indirectly as evidence pointing to a tendency to engage in vexatious activity. One can well understand a person in the position of the prisoner, believing that the prison authorities had breached his legal privilege rights, would want some form of formal recognition of those rights. It is also of some significance that a legal practitioner was prepared to argue the same issue in the Court of Appeal even though such an application had to fail. In the end, it seems to me, that the plaintiff cannot rely upon the facts and circumstances surrounding these matters to support the application. I turn to another proceeding which, in my view, is in the same category.

Originating motion 6596 of 2002 for return of legal material ((B) above)

In this matter, Mr Knight sought an injunction ordering that the defendants return to him certain legal material sent to him by mail from the Darebin Community Legal Centre on 28 June 2002. Shortly prior to the hearing, on 15 August 2002, the second defendant deposed that he had decided that the materials in question should be released and that they were available to be provided to the plaintiff at the prison. At the hearing the plaintiff sought amendments to the originating motion by substituting for the original injunctive relief sought an order in the nature of a prohibitory injunction ordering the defendants to refrain from inspecting legal mail sent to or by the plaintiff in any way inconsistent with the statutory procedures set out in the Corrections Act 1986. In the alternative, he sought an order in the nature of declaration declaring the relationship between his common law rights to legal professional privilege and the provisions in the Act.

By the time of the hearing, all the documents had been returned. Justice Balmford refused the application to amend the statement of claim to include the proposed injunction on the basis that it was unnecessary for the Court to make an order directing defendants to comply with the law. She also declined to allow the amendment application to seek a declaration for the reason that, the documents having been returned, the issues raised were hypothetical.

Again, it cannot be, and is not, contended by the plaintiff that the initiating of these proceedings was vexatious. The plaintiff's contention is that the application to amend by substitution of new futile and hopeless alternative claims was vexatious. Again, I am not persuaded that an application to amend the relief sought can constitute the institution of proceedings. The evidence of what occurred, however, is indirectly relevant in that Mr Knight had already had explained to him by Ashley J and the Court of Appeal that relief cannot be sought in the absence of a live dispute. Notwithstanding that, and notwithstanding that he had in substance achieved what had been sought in the proceeding, Mr Knight persisted in seeking orders when he must have known he would fail.

Supreme Court Proceeding No 8621 of 2002 (Proceeding (v) in category (E)

This proceeding is not relied upon by the plaintiff. Mr Knight issued an originating motion on 12 February 2003 seeking orders quashing a decision to classify him as a long term placement in the Acacia high security unit at Barwon Prison. He also sought an order requiring the defendants to re-classify him to a normal accommodation unit.

In this matter he was represented by senior counsel before Cummins J. His Honour rejected the arguments of counsel for Mr Knight. Mr Knight sought and obtained an extension of time in which to appeal and leave to appeal. His application was successful but the appeal is yet to be listed. Thus this matter, also, cannot be relied on by the plaintiff. On the other hand, it is relevant to the ultimate decision in these proceedings as an example of another proceeding that was instituted that cannot be categorised as vexatious.

The other proceedings to which I now turn are proceedings where I am persuaded the institution of which was, in my view, vexatious.

Proceedings before Deputy President Coghlan and subsequent appeals (C) above)

The plaintiff lodged a complaint with the Equal Opportunity Commission alleging discrimination in respect of his political beliefs and activities. What gave rise to the complaint was a search of his cell. A number of items were removed including items such as two blades in paper clip boxes, one Stanley knife blade, one sharpened butter knife, a quantity of bale hooks, sharpened metal spike/nail and three metal shives. The only item of conceivable political relevance was the fifth item identified which was described as "numerous articles associated with the Klu-KLux Clan/Nazi Party/White Power/Racist Party".

The Equal Opportunity Commission declined to entertain the complaint and Mr Knight then exercised his right to have the matter referred to VCAT. The Deputy President dealt with the matter under s 75(1) of the VCAT Act which permits summary dismissal of a proceeding where it is:

"(a) . . . frivolous, vexatious, misconceived or lacking in substance; or (b) . . . is otherwise an abuse of process."

The Deputy President Coghlan gave extensive and detailed reasons on 12 July 2002 demonstrating the futility of the proceeding. As I see it, there was no basis upon which Mr Knight could demonstrate discrimination on the ground of "political belief or activity" in what had occurred. In substance, his complaint really was about the exercise by the prison authorities of their powers in controlling and managing the prison. Mr Knight gave evidence before Mrs Coghlan in respect of which Mrs Coghlan made the following comments:

"48. Mr Knight himself said that his complaint was really about the reasonableness of the decision to confiscate and retain the material and he is aware that there are other avenues through which he could contest the reasonableness of those actions. 49. Where that is the case, where on the face of the complaint and in the submissions there is nothing linking the conduct to the attribute claimed, where the complainant's claim is one of assertion only, where the complainant admits there is no other evidence he can call and where a more probable explanation had been given for the conduct (as I am satisfied in this case), the complaint is misconceived and lacking in substance and has no prospect of success. In all of those circumstances it should be dismissed in its entirety and I so do."

In addition to dismissing the proceedings, Mrs Coghlan ordered Mr Knight to pay the costs of the hearing.

Plainly, this proceeding was a vexatious proceeding and is one upon which the plaintiff can rely.

Notwithstanding the fact that the Deputy President had given a clear and, if I may say so, obvious explanation as to why the proceedings had to fail, Mr Knight instituted proceedings seeking an extension of time to commence an application for leave to appeal from the decision and sought leave to appeal. This application was filed on 20 August 2003, approximately 13 months after the substantive decision. The application for extension of time, and the application for leave to appeal, were heard by Kellam J on 10 September 2003 and 11 November 2003. He dismissed the applications on the grounds that the appeal was futile and bound to fail and hopeless. He ordered the defendant to pay the respondent's costs of the application.

In submissions in this proceeding, counsel argued that there was a real issue, raised on the appeal to Kellam J, about the ordering of costs against Mr Knight when plainly it could not be met - giving rise to the question whether the costs order was being pursued for an improper purpose. His Honour considered the issue when considering ground 9, the last of the grounds of appeal. His Honour held that the circumstances were that the Tribunal had formed the opinion that the complaint made by the applicant was misconceived, lacking in substance and had no prospect of success and that the respondent therefore had an entitlement under s 75(2) of the VCAT Act to seek an order for costs. His Honour also held that there was no evidence before him of any improper purpose as had been argued by Mr Knight.[9] He then considered an argument advanced by Mr Knight that an inference could be drawn that there was such an improper purpose. He had argued that this inference should be drawn because the circumstances were that he earned $35 a week in prison and the immediate prospect of recovery of costs was remote. His Honour accepted the argument, however, that the respondents were entitled to the benefit of a costs order, particularly where frivolous and unsustainable proceedings had been brought. His Honour noted that it cannot be assumed that an impecunious party will not receive the benefit of an inheritance or that a garnishee order might not be made in the future. His Honour also referred to the applicant's professed desire to seek payment for media interviews in the future. He accepted the submissions of counsel for the respondents that it was speculative to say that a costs order could not be enforced in the future. In my view, the impecuniosity of the unsuccessful party is a discretionary matter and there was no prospect of establishing error of law on that issue. There were eight other grounds which his Honour summarily dismissed because they raised no question of law. It is apparent that Mr Knight, in formulating his grounds of appeal, was well aware of the need to show errors of law. If Mr Knight did not understand the distinction between errors of law and errors of fact, nonetheless the hopelessness of the original challenge and application was such that any attempt to obtain leave to appeal against the decision was doomed to fail. I am satisfied that this also was a vexatious proceeding.

Mr Knight then filed a notice of appeal on 23 November 2003. It was served on the respondents on 23 November 2003. It was withdrawn on 4 January 2004. The plaintiff's contention is correct, in my view, that this also was a vexatious proceeding.

The freedom of information application ((D) above)

In this matter, Mr Knight had sought access under the Freedom of Information Act 1982 to some 99 documents or parts of documents in the possession of CORE. This access was refused and he sought a review of that decision by VCAT. The respondent sought an order dismissing or striking out the application pursuant to s 75 of the VCAT Act 1998.

The dispute was narrowed down to the gaining of access to one document, number 9, which apparently was a computer record of visitors to Mr Knight with personal details attached to them. The Tribunal referred to a previous determination of an application by Mr Knight involving telephone records containing similar sorts of information. Access had been refused on the grounds that the documents were exempt because a disclosure would involve the unreasonable disclosure of information relating to the personal affairs of persons. Deputy President McNamara took the view that essentially Mr Knight was seeking to re-agitate issues that had, as a matter of substance, been determined previously and that that constituted an abuse of process.

Counsel submitted in this proceeding that the comparison was not valid in that visiting the prisoner is a public act that can be observed and telephoning is not. But even telephoning involves disclosure to prison officers of the identity of the person contacting the prisoner. Bearing in mind the terms of the exemption and that disclosure would have involved disclosure of information personal to the visitors to the world, the comparison made by the Tribunal was a valid one. Moreover, it was a decision that was plainly right - for the reasons given by the Tribunal. It seems to me, also, that it would involve an "unreasonable disclosure of their personal affairs" because Mr Knight could, himself, have had no need for such information relating to people visiting him.

In reaching its conclusion, the Tribunal relied upon a decision of Russo v Kogarah Municipal Council[10] in support of the proposition that it is an abuse of process to seek to "re-agitate" issues. It may well be that, as argued by counsel for Mr Knight, such authority is not directly in point and that there may be room for argument as to the validity of the application of such a principle where different documents are under consideration even though the same statutory provision is to be applied to them. Nonetheless, the fact is that Mr Knight must have been well aware of the problem he faced in seeking that document in view of the previous decision he had received and nonetheless persisted with his claim even though he must have known that it was unlikely to be successful. Furthermore, it is difficult to see how he could have thought that a different approach would be appropriate in light of the fact that he had not sought to appeal the earlier decision.

The decision was handed down by Deputy President McNamara on 10 April 2003. On 16 July 2003, Mr Knight filed an originating motion seeking an extension of time to apply for leave to appeal against the decision and for leave to appeal. This matter came before Kellam J and the respondents submitted that the application should be refused as hopeless and bound to fail. His Honour accepted the argument. His Honour dismissed the application on 10 September 2003 and on 23 February 2004 ordered the defendant to pay the respondent's costs. The plaintiff contends that the application for extension of time and leave to appeal was also vexatious. That conclusion must, in my view, follow.

Mr Knight issued five proceedings which were heard by Cummins J. I have already referred to the fifth of these proceedings, one which cannot be included as a vexatious proceeding. The other cases were the following.

(a) Number 4003 of 2003. This proceeding concerned the opening of legal practitioner mail by Barwon Prison Officers on or about 18 December 2002 being letters to the plaintiff from the Darebin Community Legal Centre and one to the plaintiff from the Supreme Court.

(b) Number 7945 of 2002. This case arose out of the finding in the cell of the plaintiff of one three inch metal length or nail and one eight inch metal length or nail sharpened and concealed in pens in the plaintiff's cells. In that matter Mr Knight sought an order in the nature of certiorari quashing the decision of the first defendant that the plaintiff had committed a prison offence and sentenced him to seven days loss of privilege.

(c) Number 4002 of 2003. This case arose out of the finding on 29 November 2002 of scissors secreted in Mr Knight's socks in his cell. The originating motion filed sought originally an interlocutory injunction restraining the defendant from enforcing the penalty of seven days loss of privileges. By the time of the hearing, events had overtaken matters and he sought an order of certiorari quashing the decision.

(d) Number 4596 of 2002. Mr Knight sought an order in the nature of certiorari quashing the decision by the third defendant in that proceeding that the plaintiff had committed prison offences resulting in him being again sentenced to loss of privileges. This occasion concerned the finding on three separate incidence of sharpened prison issue knives secreted between pages in a magazine in the cell of the plaintiff.

The proceedings were heard over eight days in August and September of 2003. On 7 October 2003 Cummins J dismissed each application as unmeritorious and ordered the defendant to pay the costs of the respective employees of the prison authority. His Honour described the complaints of Mr Knight as unjustified and at best nit picking. The plaintiff submits that these proceedings were also vexatious.

Counsel for Mr Knight sought in these proceedings to argue that two of the proceedings had arguable points in them.

In that matter, Mr Knight sought to challenge a conviction for a prison offence on the grounds that the charge document did not give particulars of the offence. That would have been an arguable issue if Mr Knight had not known the details of the charges bought. Cummins J had no doubt that he did. It concerned the presence of sharp metal lengths or nails concealed in pens of Mr Knight.

The same issue arose in relation to three incidents and two charges - once concerning a sharpened prison issue knife secreted in a magazine. His Honour again was satisfied that the lack of particulars had not prejudiced Mr Knight.

It seems to me that while the points were arguable, they were, in the end, without merit and could not succeed. I note that counsel did not suggest that there were any points that were arguable in the other two proceedings.

The plaintiff's submission that these four proceedings were vexatious should also be accepted.

That was not the end of the matter. On 27 November 2003, the defendant applied to the Court of Appeal to extend time within which he could appeal against each of the orders made by Cummins J on 7 October 2002. He also applied for leave to appeal against the orders for costs made in those proceedings. The matter came before the Court of Appeal which refused the extension of time because each decision was not in its view attended with relevant doubt. It also was of the view that it would be futile to grant an extension of time because the prospects of success on appeal would be hopeless or virtually so. Similar views were expressed in relation to the application for an extension of time in which to seek leave to appeal against the cost order. The plaintiff contends that these proceedings were also vexatious. I must agree.

Mr Knight has in the last three years initiated some proceedings which could not be described as vexatious. He has, however, initiated a substantial number of proceedings that were vexatious and has persisted in his pursuit of hopeless claims by initiating appeals in all such matters. He is obviously an intelligent man but refuses to accept the obvious soundness of the decisions given against him and has demonstrated a habit of pursuing vexatious claims and doing so persistently. The issue that remains is whether the discretion to declare him a vexatious litigant should be exercised.

In exercising the discretion conferred by s 21 of the Supreme Court Act, it is important to bear in mind that the remedy sought is of a most serious nature and a clear and compelling case must be made out to warrant the grant of the remedy.[11] As counsel for the defendant stated in written submissions, s 21 imposes:

"upon the Court the jurisdictional responsibility for determining what person should be excluded from the universality of access to the Courts which is their central premise."

Depriving a person of immediate access takes on a greater significance when that person is a prisoner. Prisoners are vulnerable and it is important for them to have access to the legal system.[12] Of particular concern are the cases in which it appears that a dispute has arisen concerning documents for which claims of legal privilege are made. Unimpeded confidential access to a legal practitioner is important for all but especially so for the vulnerable.

Counsel for Mr Knight submitted that the consequences of a declaration are extremely onerous because leave to bring proceedings can only be given if the relevant court or tribunal is "satisfied that the proceedings are not or will not be an abuse of the process . . ."

Counsel submitted that to give effect to the quoted passage "or" must be read as "and". In my view, the word "or" can, and should, be given its ordinary meaning. The primary reason for the alternatives is to be found in sub-section (3) which contemplates that the order declaring a person a vexatious litigant may provide that the vexatious litigant must not "without leave":

"(d) continue any legal proceedings ..., or (e) commence any legal proceedings ..."

The alternatives in sub-section (4) mirror those alternatives. In addition there are at least two situations in which the second part of the phrase can operate as an alternative:

(a) the court is satisfied that the proceedings are an abuse of process as formulated but if appropriately amended will cease to be so;

(b) the court is satisfied that the proceedings are not an abuse of process as formulated but the pursuit of the real objective of the proceedings will constitute an abuse of the court's process.

Counsel also argued that the task of demonstrating that proceedings will not be an abuse of process will be extremely difficult because the possibility that the proceeding will be shown to be an abuse of process in the future is always present. In further submissions the point was restated in terms that the phrase "will not be" meant that any case with the potential to become an abuse of process would be caught.

In my view, the issue of whether a proceeding "will not be" an abuse of process is one to be determined on the evidence and on the probabilities. The person seeking leave will need to satisfy the Court on the balance of probabilities that the proceedings will not be an abuse of process. That person will not fail simply because every proceeding has the potential to turn into an abuse of process. The party opposing the application will need to raise real issues on the basis of the material before the Court which raise real questions as to whether the proceeding will be an abuse of process.

Applying the same construction, counsel for Mr Knight expressed concern that the phrase "will not be an abuse of process" meant that the declaring of a person as a vexatious litigant would prevent the person later raising a case where it was debatable whether it was an abuse of process. Counsel referred to an example of Williams & Ors v Spautz.[13] In that case, some of the defendants sought a declaration that the proceeding was an abuse of process. The primary judge and the judges of Court of Appeal and High Court were in disagreement as to whether the proceedings in question were an abuse of process. Counsel submitted that if sub-section (4) had been applied to Dr Spautz he would not have been able to discharge the onus of satisfying a judge that the matter was not, or will not be an abuse of process. Counsel also submitted that the plaintiff in the famous Mabo case[14] would have been unable to discharge the sub-section (4) onus. It seems to me, however, that s 20(4) when applied would require the primary judge and any subsequent appellate court to embark upon a judicial exercise similar to that which occurred in those cases in determining whether the proposed proceeding is not or will not be an abuse of process.

Nonetheless, I accept the underlying submission of counsel for the defendant that the hurdles created by s 20(4) are such that the threshold for exercising the discretion should be viewed as a high one.

Counsel for the defendant also submitted that before a person can be found to have "habitually, persistently and without reasonable grounds instituted a vexatious proceeding", the Court should require that it be established that:

"The person's future conduct will inevitably be of the same character and that the future conduct will threaten the ability of the Court to discharge its function on this restrain by order."

The quoted requirements are not relevant, in my view, to the critical threshold question. In exercising the discretion, however, it would be plainly relevant to consider whether, and to what extent, it is likely in the future that the defendant will engage in conduct of the same character. Conduct of the same character would ordinarily have an adverse impact on the ability of the courts to discharge their functions. As to the other aspect of the quoted passage, I do not accept that it is necessary for the plaintiff to establish that such future conduct would be inevitable and inevitably of the same character. I can see no basis for importing such an extreme requirement. For present purposes I proceed, without deciding the question, on the basis that a high probability of future conduct of the same character is sufficient.

Counsel also submitted that it was significant that some of the proceedings appeared to have been successful. In addition, it was put that in some of the matters dismissed Mr Knight had secured the representation of legal practitioners and their involvement should prevent the drawing of a conclusion that they were vexatious and this feature was relevant also.

In the end, the latter issue has little bearing on the outcome. One proceeding, the fifth proceeding before Cummins J is currently awaiting consideration by the Court of Appeal and is not relied upon by the plaintiff. It is relevant, however, as a case that should be regarded as not vexatious. The other proceeding was the appeal from Ashley J. There is no evidence before me, however, that Mr Knight was advised in that matter that his case had merit. The involvement of a legal practitioner in that case is not surprising where the important issue of legal privilege was in question. The appeal, however, was vexatious.

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

Declaring him vexatious will not completely deny him access to the courts or VCAT. But, notwithstanding his vulnerable position, he should be required to seek the leave of the Court before instituting any further proceedings.

It will be even more important for Mr Knight once declared vexatious that he have untrammelled and confidential access to legal practitioners. I have considered whether some form of exception might be placed in the order to protect Mr Knight in circumstances where the proposed proceeding concerned legal privilege. Counsel for Mr Knight submitted that the order should identify particular proceedings. It is difficult, however, to draft anything which would not provide a means by which he could engage in further vexatious litigation. It is to be expected, however, that if in the future there is a bona fide issue about interference with his right to legal privilege, leave to proceed would be readily granted. If protection of his right to legal privilege proves to be a problem, the need for an exception to the order can be revisited and the order varied.

I raised with counsel the issue of whether an order, if made, should be formulated in such a way as to permit Mr Knight to seek leave from the Court or Tribunal in which he sought to initiate proceedings. I have come to the conclusion that that would be unwise. The history of the proceedings to which I have referred suggests that there is a high probability that if Mr Knight sought leave to institute proceedings in, say, VCAT, and was unsuccessful, he would then seek to use the appeal and review processes to come to this Court. It is probably in the interest of the courts, VCAT and the community that this Court take the responsibility of dealing with such applications for the immediate future at least.

For the foregoing reasons the declaration and order sought by the plaintiff should be granted.

[1] A-G v Weston [2004] 314, paras 9 - 11 and generally for an important recent analysis of relevant principles. See also Mephistopheles Debt Collection Service v Lotau [1994] 1 WLR 1064; A-G v Wentworth (1988) 14 NSWLR 481 and Hunters Hill Municipal Council v Pedler & Anor [1976] 1 NSWLR 578, 478.

[2] Weston above para 14; A-G v Michael (1994) WASCA 181.

[3] Victorian Full Court, unreported 4 September 1984, Starke, Crockett and Beach JJ at p 12.

[4] Weston paras 14-19, Kay v AG for Victoria (2000) 2VR 436, 437-8.

[6] Weston paras 20, 21 and 23. Brogden v AG [2001] NZAR 2001.

[7] Weston paras 22 and 23; AG v Wentworth [1988] 14 NSWLR 431, 492 - 3.

[11] A-G v Wentworth (1988) 14 NSWLR 484 486; Weston, above, para 7.

[12] Muir v R [2004] HCA 21; (2004) 206 ALR 189, 194. See also the affidavit filed for the defendant sworn by Richard Frederick Edney.

[14] The issues were heard on the plaintiff's demurrer.