Plaintiff v Defendant

2 By originating motion filed on 30 January 2013, Mr Knight seeks leave to commence a proceeding against the proposed defendant, Mr Wise, on grounds, inter alia, that the proposed proceeding has substance, is not an abuse of process or doomed to fail, and raises novel questions of law in regard to prisoners' access to 'in cell' computers.

3 In the proposed proceeding, Mr Knight seeks orders in the nature of certiorari to set aside three decisions made by Mr Wise to deny him access to an 'in cell' computer - the first made on 22 December 2010, the second on 24 April 2012 and the third on 11 September 2012 - on the grounds of Wednesbury unreasonableness and, in the case of the first decision only, on the grounds that Mr Wise failed to take into account relevant considerations and took into account irrelevant considerations.

4 Mr Knight has brought a number of proceedings challenging decisions to refuse him access to an 'in cell' computer. Indeed, the first and second decisions (those of 22 December 2010 and 24 April 2012) have already been the subject of proceedings in this Court.

5 On 7 July 2011, Mr Knight was granted leave on a limited basis to bring proceedings challenging the decision of 22 December 2010.[1] Following the grant of leave, the proposed defendant consented to some (but not all) of the relief sought in that case and, on 27 March 2012, Dixon J made orders quashing the 22 December 2010 decision and requiring Mr Wise to reconsider Mr Knight's application according to law.

6 The decision of 22 December 2010 has been set aside. It therefore has no legal effect and is not amenable to further review by this Court. The Court cannot grant leave to Mr Knight to bring proceedings seeking to challenge a decision that has already been quashed.

7 Following the setting aside of the decision of 22 December 2010, Mr Wise was required to make the decision as to whether to grant access to an 'in cell' computer anew. By letter dated 24 April 2012, Mr Wise informed Mr Knight of the decision that he proposed to make to refuse him access to an 'in cell' computer and gave reasons for the proposed decision.

8 On 5 October 2012, Mr Knight issued a further originating motion seeking leave to commence a proceeding to obtain relief in the nature of certiorari to quash the decision of 22 December 2010 and the proposed decision of 24 April 2012 on the ground of Wednesbury unreasonableness. Justice Kyrou treated the proposed decision of 24 April 2012 as though it were a final decision and heard Mr Knight's application for leave to commence a proceeding in respect of it, but determined that the application could not extend to the decision of 22 April 2012, as it had been quashed.

9 On 31 October 2012, Kyrou J dismissed the application for leave to bring a proceeding in respect of the decision of 24 April 2012 (the second decision) on the basis that the proposed proceeding was 'foredoomed to fail' because the affidavit material on which Mr Knight relied was incapable of satisfying the test of Wednesbury unreasonableness. Kyrou J held:

In my opinion, the Proposed Proceeding is foredoomed to fail. The affidavit material filed by the Proposed Plaintiff in support of his application for leave is incapable of satisfying the test of Wednesbury unreasonableness as explained at [43] to [46] above. On its face, the Proposed Decision addresses the applicable criteria for determining applications for the purchase of in-cell computers in a rational and objective manner and takes into account the matters submitted by the Proposed Plaintiff in support of his application. The Proposed Decision explains that the refusal of the Proposed Plaintiff's application is based on his circumstances, as outlined in the Proposed Decision, and indicates the reasons for the favourable and unfavourable decisions that have been made in relation to applications by other prisoners.[2]

10 On 18 December 2012, the Court of Appeal refused leave to appeal from the judgment of Kyrou J, essentially on the basis that the substance of Mr Knight's complaints relating to the alleged unreasonableness of Mr Wise's decision were carefully examined by Kyrou J and his Honour made no error.

11 The decision of 24 April 2012 (the second decision), and whether a challenge to it on the ground of Wednesbury unreasonableness is foredoomed to fail, has therefore been the subject of a determination by Kyrou J, which was upheld in the Court of Appeal.

12 The only one of the three decisions that Mr Knight now seeks leave to challenge that has not previously been the subject of a challenge by Mr Knight and consideration by this Court is therefore the third decision, that made on 11 September 2012.

13 It is convenient to consider briefly the substance of the two decisions made in 2012. The second decision is contained in the letter sent by Mr Wise to Mr Knight on that date. Mr Wise wrote to Mr Knight setting out his proposed decision to refuse Mr Knight's application for an 'in cell' computer and the reasons for the refusal, inviting Mr Knight to comment on them. Mr Wise's letter commences by explaining Corrections policy in relation to computers in prison and identifying Mr Knight's grounds for seeking access to an 'in cell' computer on the basis of his legal, educational and reintegration needs. Each of these needs is considered individually, having regard to the legal proceedings then on foot, the courses undertaken or proposed to be undertaken by Mr Knight and his need for a computer to develop computer skills or otherwise to facilitate communication skills. Mr Wise's letter also deals with the allegation of inconsistent treatment, rejecting the suggestion that Mr Knight had been treated as a special case, and stating that since April 2009, the Major Offenders Review Panel had considered around 36 computer matters of which eight had been approved on the basis of the prisoners' outstanding criminal trials or appeals. Twelve prisoners had had their applications rejected.[3] While Mr Wise did not approve the application for an 'in cell' computer, he noted that a change in Mr Knight's security rating and placement might be relevant to any future decision on this question.

14 Mr Knight commented on the proposed decision (the second decision) by letters dated 1 May 2012 and 12 July 2012, which, among other things, updated the position with respect to his legal proceedings and educational requirements. Mr Knight also expressed frustration at what he alleged to be inconsistent treatment and the differentiation between civil and criminal proceedings when assessing the need for an 'in cell' computer. Mr Wise responded by letter dated 11 September 2012 (the third decision) in which he identified the two matters raised by Mr Knight as being a further legal proceeding (seeking judicial review in relation to the Adult Parole Board) and an invitation by Open Universities Australia to apply for a Commonwealth supported place at Griffith University. Mr Wise dealt with each of these matters in turn and again refused Mr Knight's application for an 'in cell' computer. However, he stated that he would be willing to consider a new application should there be a substantial change to Mr Knight's circumstances.

15 The third decision therefore builds upon and is largely based on the second decision.

16 There is a question as to whether, Kyrou J having determined the proposed proceeding for judicial review in respect of the second decision was foredoomed to fail because the affidavit material on which Mr Knight relied was incapable of satisfying the test of Wednesbury unreasonableness, this court could or should entertain a further application to have the decision set aside on the same ground. Mr Knight submitted that as a decision to refuse leave to bring proceedings is interlocutory, it was open to him to renew his application for leave in respect of decisions for which leave had already been refused. He argued that there was 'additional material' that was not before Kyrou J that entitled him to renew his application for leave to bring proceedings to challenge the 24 April 2012 decision. The 'additional material' referred to by Mr Knight was a document entitled 'The Commissioner's Requirement for Prisoner Computers' dated January 2011 (the 'Commissioner's Requirement') and two photographs of a 'loss of privilege cell' at Barwon Prison that he said showed them to have no power points.

17 Mr Knight puts forward the evidence about the wiring of 'LOP' cells to assist the interpretation of a document entitled 'Approval of Annual List of Privileges 2012' (the '2012 List of Privileges'), which describes the prisoner privileges for the 2012 year. The 2012 List of Privileges sets out what privileges may be available to prisoners and makes reference to access to 'all in-cell electrical appliances (other than radios, fan, jug and shaver)' and access to 'shared unit computers and electronic games consoles.' According to Mr Knight the former must include 'in cell' computers, as there are no other electrical appliances that could fall within the first category. However, Kyrou J determined that the 2012 List of Privileges did not include access to an 'in cell' computer. Although Mr Knight had argued that the privilege concerning access to 'in cell' electrical appliances was wide enough to include access to 'in cell' computers, his Honour determined that the existence of a specific and narrowly worded privilege concerning access to computers precluded such access from falling within the broad privilege dealing with electrical appliances. In the Court of Appeal, that determination was held to be correct. The 'additional material' in the form of the photographs of the 'LOP' cell is therefore not capable of making any difference to the construction of the 2102 List of Privileges.

18 As for the other 'additional material', the second decision makes express reference to the Commissioner's Requirement as one of the matters considered when making the decision to refuse access to an 'in cell' computer. If Kyrou J was not in fact taken to the Commissioner's Requirement, it was certainly open to Mr Knight to have taken his Honour to it. Moreover, in submissions before me, Mr Knight was invited to, but did not explain how the Commissioner's Requirement should have been taken into account by Kyrou J and what difference reference to it could make to the prospects of establishing the unlawfulness of the 24 April 2012 decision. It is entirely unclear how reference to the Commissioner's Requirement could assist Mr Knight to satisfy the test of Wednesbury unreasonableness in respect of the 24 April 2012 decision.

19 In my view, no basis has been put forward for the Court to reach a different decision from that of Kyrou J in relation to the second decision, even if it were open to the Court to make a different decision.

20 Finally, although the third decision has not been the subject of previous judicial consideration and determination, it is grounded in the second decision. The only new factual information provided by Mr Knight prior to the third decision was in respect of a further proceeding and that he had been offered a Commonwealth funded place for his Bachelor Degree studies at Griffith University. The third decision therefore effectively confirmed the decision which had already been made to refuse access, having regard to the new information. Mr Wise noted that no material new circumstances had been identified but stated that, if there were a change of circumstances in the future, the application would be reconsidered.

21 The third decision is also challenged on the grounds of Wednesbury unreasonableness. The particulars are set out in paragraph 3(a)(i) - (vii) of the Originating Motion to include the propositions that:

(a) the decision is inconsistent with other decisions of a like nature and without any rational justification;

(b) Mr Knight has a right at common law and pursuant to the Corrections Act 1986 (Vic) to unimpeded access to the courts;

(c) Mr Knight's application fulfilled the three eligibility criteria in the Commissioner's Requirement; and

(d) the 2012 List of Privileges encompasses access to 'in cell' computers.

22 Mr Knight complains, in particular, that more than 300 other applications have been approved and that the rationale given by Mr Wise that access has been denied to a number of 'major offenders' is spurious.

23 As Kyrou J explained in his decision,[4] the ground of Wednesbury unreasonableness is difficult to establish, due to the fundamental distinction between judicial review, which is concerned with legal validity, and merits review, which is concerned with arriving at the correct (or preferable) decision in the circumstances.[5] His Honour said:

A decision may be unreasonable in the Wednesbury sense because it is manifestly unreasonable, that is, it simply defies comprehension, or because it is obvious that the decision-maker consciously or unconsciously acted perversely. Wednesbury unreasonableness will also be made out where there was manifest illogicality in arriving at the decision - there being illogical findings, or inferences of fact unsupported by probative material or logical grounds.[6]

24 The decision of 11 September 2012 must be read as an updating of or addendum to the 24 April 2012 decision. In my view, insofar as it incorporates the reasons given for the 24 April 2012 decision, the decision of 11 September 2012 explains the decision to refuse access by reference to the applicable criteria in a rational and objective manner and takes into account the matters submitted by Mr Knight in support of his application. The refusal of Mr Knight's application is based on consideration of his circumstances. As a result, the decision of 11 September 2012 can no more be said to be manifestly unreasonable or to display manifest illogicality than the decision of 24 April 2012. Mr Knight may consider it to be manifestly 'wrong', but that is not the relevant test.

25 The decision of 22 December 2010 (the first decision) is not amenable to review, having been quashed.

26 The decision of 24 April 2012 (the second decision) has been the subject of prior judicial determination. The Court has determined that a proposed proceeding to set aside the second decision on the grounds of unreasonableness was foredoomed to fail on the basis of the affidavit material and submissions upon which Mr Knight relied on that occasion, for there was no prospect of satisfying the test of Wednesbury unreasonableness. Mr Knight has not put before the Court any additional material capable of producing a different result. Even if it were open to Mr Knight to mount a fresh attack on the second decision on the grounds of unreasonableness, he has not put anything before the Court to show that the challenge might have some prospect of success. In my view, the proposed challenge to the second decision is foredoomed to fail.

27 Finally, in respect of the decision of 11 September 2012 (the third decision), the challenge on the ground of unreasonableness would fail for the reason that the challenge to the second decision would fail. The third decision is essentially an updating of the second decision, based on changes to Mr Knight's circumstances between April and September 2012 that Mr Wise did not consider to warrant a change to his proposed decision.

28 The proposed proceeding is foredoomed to fail and would therefore constitute an abuse of process. The Court has no discretion to grant the leave that is sought.

29 As a further matter, however, even if there were a prospect that the proposed challenge to the lawfulness of the second and third decisions could succeed, the Court would not allow the proposed proceeding to be commenced as a matter of discretion. The decisions in question are stale. Mr Knight informed the Court that he has made further applications for an 'in cell' computer and has received further refusals, which are now also the subject of further proposed applications for review. He pointed to changed circumstances with respect to both his legal and educational commitments. If Mr Knight now seeks access to an 'in cell' computer on the basis that he has twelve legal proceedings on foot, including a proceeding in the High Court of Australia, and because he has been forced to abandon studies because of the lack of access to computer facilities, then those are matters supporting a further application. They were not the prevailing circumstances when the second or third decisions were made and are not relevant when considering the lawfulness of the second and third decisions.

30 Leave to bring the proposed proceeding is refused.

[1] Knight v Wise [2011] VSC 313.

[2] Knight v Deputy Commissioner, Corrections Victoria [2012] VSC 506, [48].

[3] The content of the 24 April 2012 decision is set out in more fully in the decision of Kyrou J at [23] to [31].

[4] Knight v Deputy Commissioner, Corrections Victoria [2012] VSC 506 [45].

[5] Mastwyk v DPP [2010] VSCA 111; (2010) 27 VR 92, 96 [17].

[6] Knight v Deputy Commissioner, Corrections Victoria [2012] VSC 506 [44], citing East Melbourne Group Inc v Minister for Planning [2008] VSCA 217; (2008) 23 VR 605, 647-8 [183].