Plaintiff v Defendant

Supreme Court of Victoria|2009-10-07|Before: HARPER J

PRACTICE AND PROCEDURE - Vexatious litigant - Application for leave to institute proceedings in the Victorian Civil and Administrative Tribunal for a review of a decision under the Freedom of Information Act - Supreme Court Act 1986, s.21 - Application granted.

2 In support of the application, Mr Knight has filed an affidavit affirmed on 18 August 2009. In that affidavit, Mr Knight sets out the background to the application.

3 Of relevance in that background are the circumstances first that on 19 August 2004, Mr Knight underwent what is known as a tier one assessment in the prison. That assessment was conducted by two members of Correction Victoria's Sentence Management Unit.

4 According Mr Knight's affidavit, the conclusion reached by that report was that his risk of reoffending was rated as category 2, low. He was subsequently granted access to that report, as he has been granted access to a number of other reports or assessments. These are listed in paragraph 16 of his affidavit and include the following; first, a report dated 21 August 1987 by Dr Alan Bartholomew, a forensic psychiatrist. Secondly, a new psychological assessment dated 23 February 1998 prepared by Mr Ian Stuart, a consultant neuro psychologist engaged for that purpose. Thirdly, a report dated 29 February 1998 by Mr Tim Watson-Munro, then a consultant forensic psychologist. Fourthly, a report dated 26 October 1988 by Mr David Sime, a consultant forensic psychiatrist, and finally a report dated the same date, 26 October, 1988, by Dr Kenneth Burn, a clinical and forensic psychologist.

5 Each of those reports, as I understand it, were reports relating to Mr Knight's psychiatric or psychological condition. Each of them were and are, doubtless, relevant, to Mr Knight's programs and treatment while a prisoner. Each of them, again as I understand it, related particularly to personal medical details of Mr Knight.

6 The report to which Mr Knight now seeks access, may be in a different category. This may ultimately be a significant factor in any determination about whether or not Mr Knight is entitled to access to it, but that is not a matter for me this morning.

7 My only function is one which arises, as I have indicated, from section 21 of the Supreme Court Act. That section deals with vexatious litigants. Mr Knight is a vexatious litigant, an order to that effect having been made on 19 October 2004.

8 One of the effects of that order is that Mr Knight may not, without leave of the court, commence any legal proceedings in the court or any specified inferior court or tribunal. The Victorian Civil and Administrative Tribunal is, as I understand it, one of the specified bodies to which section 21(3) of the Supreme Court Act, refers.

9 Accordingly, Mr Knight must be granted the leave of the court before his proposed application do the Victorian Civil and Administrative Tribunal can be instituted; but it is only by such an application that he can seek access to the report, access to which he currently seeks.

10 That report, if Mr Knight's affidavit correctly describes it, is one which is the result of a number of assessment sessions which were conducted between Mr Knight and a Corrections Victoria clinical services psychologist, Ms Nicole Sakellardis. But the report thus compiled, may, if the views of those who have subsequently assessed it for the purposes of deciding whether or not access should be granted to Mr Knight pursuant to the Freedom of Information Act, go further than, according my present understanding, the reports which I earlier listed. They go further because they include, if the officers who have assessed them are correct in their assessment, to disclose the liberty of processes engaged in by those entrusted with the management of prisoners and prisons about the management of Mr Knight.

11 The reason put forward for the refusal of Mr Knight's access to this material thus far, have included the following (and I quote from Mr Knight's quotation from the report of a Ms Kathy Maikousis, prepared in response to an earlier application by Mr Knight for access to Ms Sakellardis' report):

It is important to ensure that measure of confidentiality which enables decisions to be made about the management of a prisoner after the frankest possible interchange of views and opinions between relevant officers.

12 On that basis, a Department of Justice FoI Officer, Mr Nick Petroulias, came to the decision that access should not be granted; and Ms Maikousis upheld his decision.

13 In coming to that decision, Mr Petroulias and Ms Maikousis relied upon section 30 of the Freedom of Information Act. That section provides that a document is an exempt document (and therefore should not be produced) if it is a document the disclosure of which, under the Act, would disclose matter in the nature of opinion or advice or consultation or deliberation that has taken place between officers in the course of or for the purpose of the deliberative processes involved in the functions of an agency and would be contrary to the public interest.

14 As I understand their position, Mr Petroulias and Ms Maikousis concluded, first, that the document was one which arose from consultation or deliberation of the kind specified in the Act and, secondly, that its release would be contrary to the public interest.

15 I can understand why reports containing that material should be given the protection of section 30 of the Freedom of Information Act. But as I have said, that is not my decision.

16 In my opinion, subject to anything which might be put to me by Mr Golombek, Mr Knight is entitled to have the officers' assessment tested by the Tribunal; in other words, by a completely independent body which will be able to make up its own mind about the proper characterisation of the report prepared by Ms Sakellardis.

17 The process should not be a complicated one. As I understand it, it is simply a matter of the Tribunal assessing whether or not the document has been appropriately categorised as one which falls within section 30 of the Freedom of Information Act. But I see no reason why Mr Knight should not be entitled to have that additional review, an entitlement which would be available to any other person seeking access to documents that are said to be exempt under the Act.

18 For that reason, it seems to me that this is not an application that I should characterise as having no prospects of success. Its prospects will depend upon the assessment of the Tribunal, once the Tribunal has itself looked at the report in question, and that is something which the legislation reserves to the Tribunal.

19 For those reasons I am at present inclined to grant the application; but I will hear Mr Golombek if he wishes to address me.

20 Accordingly, I will order that Mr Knight be given leave, pursuant to section 21 of the Supreme Court Act, to apply, pursuant to section 50 of the Freedom of Information Act, to the Victorian Civil and Administrative Tribunal for a review of the decision of Ms Kathy Maikousis, refusing to grant access to a document in accordance with Mr Knight's request.

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