Plaintiff v Defendant

1 On 29 June 2012 the Adult Parole Board (the Board) refused a request by prisoner Julian Knight for an indication of his eventual release on parole, about two years before he was eligible to be considered for such release. Mr Knight, a declared vexatious litigant in this State, now seeks the leave of this Court to commence a proceeding against the Board to quash its 'decision' to 'refuse [him] parole'. Leave must not be given unless I am satisfied the proceeding will not be an abuse of process of the court.

2 In my view any such proceeding is foredoomed to fail, and I am not satisfied that it would not be an abuse of process. Leave must therefore be refused. I explain my reasons below.

3 In 1987 Mr Knight, then aged 19, shot 26 people in Hoddle Street, Clifton Hill; seven people were killed and 19 injured. He pleaded guilty to seven counts of murder and 46 counts of attempted murder and, on 10 November 1988, was sentenced by Hampel J to life imprisonment with a non-parole period of 27 years.

4 Taking into account 92 'emergency management days' awarded to him, Mr Knight's earliest release date on parole is 8 May 2014. In various letters to the Board between 14 April 2009 and 24 May 2012 Mr Knight requested that the Board advise whether a tentative date would be set for his release on parole. The last of those letters, the letter dated 24 May 2012, relevantly stated as follows:

My current EED [earliest eligibility date] is 8 May 2014. I now have less than two years to serve before my EED. I, therefore, ask that the Board make a parole order with respect to my release at the expiry of my non-parole period in 2014. If the Board refuses to make such an order, I would appreciate it if the Board would advise me whether I can expect to be given "a tentative date for release on parole" by the Board in the near future? I note that the Board has previously made such decisions with respect to murderers, and continues to do so, around one-three years before the prisoner's EED.

5 Mr David Provan, general manager of the Board, wrote to Mr Knight at Port Philip Prison by letter dated 2 July 2012. I set out the full terms of that letter.

Dear Mr Knight

I refer to your letter dated 24 May 2012, in particular to your request that the Board give an indication of your eventual release date, and to your earlier such requests.

On 29 June 2012, the Board considered your request. After reading reports from Professor Mullen and Professor Ogloff, as well as other relevant material on your file, the Board made a decision that reads:

"Correspondence from prisoner, further incident reports and reports from Professor Mullen and Professor Ogloff considered. The prisoner's request for an indication as to his eventual release date in letter dated 24 May 2012 is refused. The Board considers that there is no prospect of an order for release on parole in the foreseeable future. In the Board's view the prisoner continues to represent a danger to the community".

6 In response to the Board's decision Mr Knight filed an originating motion by which he asks the court to review the Board's decision, employing the procedure under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005. He seeks orders in the nature of certiorari to quash the Board's decision of 29 June 2012 upon various grounds. Ultimately, those grounds may be summarised in the following way:[1]

(a) The decision is ultra vires because while s 74(1) of the Corrections Act 1986 (the Act) grants the Board a discretionary power to post date a parole order, it does not confer power to refuse parole in advance of a prisoner's earliest eligibility date, which is what the Board purported to do (the 'beyond power ground');

(b) The decision is ultra vires because it was made at a meeting of the Board without a quorum present, contravening the provisions of s 66(5) of the Act (the 'no quorum ground');

(c) The decision is ultra vires (or invalid) because the Board should have accorded the plaintiff natural justice, which it failed to do; alternatively in so far as the Board relied upon s 69(2) of the Act, that provision is invalid because the plaintiff's right to natural justice is impliedly protected by s 75(v) of the Commonwealth Constitution (the 'natural justice ground').

7 On 19 October 2004 Mr Knight was declared a vexatious litigant for a period of ten years, pursuant to s 21(2) of the Supreme Court Act 1986 (Vic).[2] The order provided, pursuant to s 21(3) of the Act, that Mr Knight must not without leave of the court commence any legal proceedings in the court, an inferior court or any tribunal. And, pursuant to s 21(4) of the Act, leave must not be given unless the court is satisfied that the proceedings 'are not or will not be an abuse of the process of the court'.

8 The relevant principles for the grant of leave were not in dispute. The Court of Appeal in this State has held that in deciding whether a proceeding is not or will not be an abuse of process, the court must have regard to whether the proceeding is 'foredoomed to fail', not to whether the proceeding has reasonable prospects of success.[3] It is for the plaintiff to establish on the balance of probabilities that the proceeding is not foredoomed to fail.

The Board may by instrument order that a prisoner serving a prison sentence in respect of which a non-parole period was fixed be released on parole at the time stated in the order (not being before the end of the non-parole period) and, unless the Board revokes the order before the time for release stated in the order, the prisoner must be released at that time.

10 Mr Knight contends that the Board's decision amounts to a decision to refuse him parole into the foreseeable future; that is, it is a decision that, for an indeterminate period beyond the earliest eligibility date, Mr Knight will not be released on parole.

11 Mr Knight further argues that s 74(1) and the ensuing subsections only authorise the Board to make a decision, in advance of the end of a non-parole period, to order the release of the prisoner on parole from a specified date after the expiry of the non-parole period. They do not authorise the Board, in advance of the expiry of the non-parole period, to order the refusal of parole for any period after the date on which the prisoner becomes eligible for parole. Because Mr Knight claims that the Board made a decision that he not be given parole, for an indeterminate time after his earliest eligibility date, he contends that the Board acted beyond its statutory power.

12 The plain fallacy in Mr Knight's argument lies in his characterisation of the decision itself. The decision was not a refusal of parole itself; it was a refusal to indicate a tentative eventual release date.

13 Mr Knight asked for an indication of an early release date. There is no reference in the Act to the Board having power to give any such indication. Nevertheless, it has apparently been a practice of the Board (at least, in the past) with respect to persons convicted of murder, as stated in the Board's Annual Report 2007-2008, that:

Three years prior to the earliest eligibility date (EED) for parole, in appropriate cases, the Board may fix a tentative date for release on parole.[4]

14 In the Board's Annual Report for 2009-2010 the reason for adopting that practice is briefly explained:

Prior to a prisoner's earliest eligibility date for parole, in appropriate cases, the Board may fix a tentative date for release on parole. This date is tentative only and may later be revoked. This procedure enables long-term offenders who, by reason of their good behaviour, have achieved a minimum security rating in prison to make application for leave pursuant to the Corrections Act 1986.[5]

15 Division 3 of Part 8 of the Act empowers the Secretary to the Department of Justice to issue a range of custodial community permits, including a rehabilitation and transition permit (s 57B), which enable a prisoner to be absent from prison for a variety of purposes. I understand that by having an indication of a tentative date for release on parole may, administratively, assist a prisoner in an application for such leave, although having such an indication is not a statutory precondition.

16 Mr Provan, the Board's general manager, made specific reference in his letter of 2 July 2012 (extracted above) to Mr Knight's request for an indication of eventual release date and stated that, on 29 June 2012, the Board considered that request. Mr Provan then set out the Board's 'decision'.

17 The first sentence of the Board's 'decision' is merely a reference to the reports and documents that were considered. The second sentence contains the decision to refuse the prisoner's request for an indication as to his early release date, specifically referencing that request to his letter dated 24 May 2012 (also extracted above).

18 It is the character of the next two sentences upon which Mr Knight's argument concerning lack of power depends. In argument, he conceded - rightly in my opinion - that if the correct view is that the 'decision' ends with the second sentence then he would have 'difficulties' in arguing that the decision is beyond power.[6]

19 But he contended that the decision does go further than the end of the second sentence. He asserts that the decision - at least arguably - incorporates the remaining two sentences and that the whole decision is embodied in the second, third and fourth sentences. So read 'as a whole', as put by his counsel in argument, the decision is that:

... for a period beyond the earliest eligibility date, you will not get parole, you will not be released on parole. We will not order your release on parole.[7]

20 In my view this contention is so manifestly wrong that it can rightly be said that Mr Knight's argument on this point is foredoomed to fail. (Indeed, for reasons I will turn to shortly, the fallacy of that argument is also determinative against Mr Knight on all of his grounds).

21 As it appears to me, the two sentences beginning 'The Board considers ... ' and 'In the Board's view ... ' are no more than the Board's explanation for it refusing the request for an early indication of an eventual release date, which refusal is the only decision expressed by the Board.

22 That such a construction is plain beyond argument is clear from (1) the context for the decision, including the prefatory parts of the 2 July 2012 letter; (2) the language of the extract expressing the Board's decision; and (3) the logical considerations inherent in making the decision that was requested.

23 The relevant context is that, in his 24 May 2012 letter, Mr Knight expressly asked whether he could be given a tentative date for release on parole by the Board in the near future. Although Mr Knight sought that tentative date as an alternative if the Board refused to make a parole order, Mr Provan's letter of 2 July 2012 made it clear that the Board was only considering the request for an indication of eventual release date. Not only did Mr Provan make that clear in his letter, but the Board also made clear in the extracted four sentences that what it was refusing was the prisoner's request for an indication as to his eventual release date.

24 Hence the context points only one way: that is, that the Board was considering and deciding upon Mr Knight's request for an 'indication' as to his eventual release on parole.

25 Plainly it is not all four sentences in the record of the Board's decision that constitutes the decision itself. The first sentence, for example, merely states what material was considered and contained no decision within it. The language of the second sentence is clearly the language of decision: 'the prisoner's request ... is refused'. The language of the next two sentences ('the Board considers' and 'in the Board's view'), in their ordinary and natural meaning, express the reasoning process lying behind the decision, rather than a decision itself.

26 When a request is made for an indication of eventual release date, two years in advance of the earliest eligibility date (EED) for parole, the Board will, necessarily, have to consider whether it views the particular prisoner as likely to get parole at some time after, but proximate to, the EED. Obviously, it is not considering the prospects of parole at a time before the EED.

27 If the Board thinks the prisoner is a likely candidate for parole at some foreseeable time after the earliest eligible date, the question is then: what date does the Board think that might be? In coming to a conclusion on that question, the Board is necessarily grappling with the very considerations that would be relevant to whether a prisoner will actually get parole: that, of course, must be so because the Board is being asked to state a date when parole might be given in accordance with the usual considerations.

28 The Board will have to consider, amongst other things, whether a prisoner represents a danger to the community. If it decided to give an indication of eventual release date, the Board would likely have taken the view that either now, or at least at the time it foresees that parole might be given, the prisoner will not represent a danger to the community (or not such a danger as to preclude parole).

29 On the other hand, if the Board thought that the prisoner either now, or at any foreseeable time (after the EED) relevant to giving an indication of eventual release date, was or would represent a danger to the community if released, the Board would presumably find itself unable to indicate an eventual release date and would decline to do so.

30 If it declined to give an indication of eventual release date for that reason, then it would effectively be saying that, upon the present material, it could not foresee a particular time when a release on parole was sufficiently probable to justify giving an 'indication'.

31 Read in context and with a common sense understanding of what is inherent in the contemplation of giving an indication of eventual release date (two years ahead of the EED), the last two sentences of the extract from the Board's meeting, are self-evidently, explanatory of the decision not to give such an indication. They are not the decision itself.

32 In my view it is plain that the Board was saying, in explanation of its refusal, that it could not give an early indication of eventual release on parole because it could not foresee a date (at that point in time) when Mr Knight would be released on parole. And the reason for that was, in the Board's view, Mr Knight was, and remained, to the extent the Board could foresee, a danger to the community.

33 But - and this is critical - although the decision involved necessary forecasting by the Board of a likely position relevant to a time when Mr Knight would actually be eligible for parole, it was not a determination regarding parole itself. The suggestion that it was smacks of opportunism.

34 That conclusion is a sufficient basis to hold that Mr Knight has failed to persuade me that the proceeding - insofar as it is founded upon the beyond power ground - is not foredoomed to fail. Indeed it was not suggested by Mr Knight that there would be any proper basis to grant the remedy of certiorari if the decision is confined in the way I have concluded.

35 However, the Board further contended that, because there was no decision made with any legal consequence, regardless of the ground relied upon, the remedy of certiorari is not available. And because certiorari was the only remedy sought, the whole proceeding was foredoomed to fail. I accept that submission for the reasons that follow.

36 The function of certiorari is to quash the legal effect or legal consequences of the decision or order under review.[8] For certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights - it is that legal effect that may be removed for quashing, which 'annihilates the legal effect' of the decision.[9]

37 The Board's refusal, on 29 June 2012, to give an indication of Mr Knight's eventual release date, is not a decision for which an order in the nature of certiorari could issue. The refusal to give such an indication is of no legal effect or consequence. The refusal does not prevent Mr Knight from being released on his parole eligibility date. Nor does it prevent the Board from determining in the future whether to exercise its power under s 74(1).

38 It may be tested this way: suppose I were to quash the Board's decision to refuse to indicate a tentative parole date. What then is left? It does not result in the fixing of a tentative parole date in its place. And as Mr Knight, in effect, rightly conceded, he could not compel the Board, by a remedy in the nature of mandamus, to give him a tentative date. Nor does the refusal remove or create an obstacle to any legal right which existed, or might have existed, without the refusal. There would simply remain an absence of any decision to fix a tentative parole date. There is no change of any legal consequence brought about by the refusal.

39 So I accept the Board's submission that, properly characterised, the Board has made no decision with any legal effect upon Mr Knight's rights. There is therefore no basis for an order in the nature of certiorari, the function of which is to quash the legal effect or legal consequences of a decision or order under review.

40 So far, I have only paid attention to the 'beyond power ground'.

41 By the 'no quorum ground', Mr Knight would argue that the Board was not properly constituted at the time it purported to make its decision because there were only three members at the meeting.[10] Section 66(5) of the Act requires the attendance of the Chairperson and at least three other members, to constitute a 'meeting' of the Board.[11]

42 By the 'natural justice ground', Mr Knight would argue that the Board was obliged to afford him natural justice, that is, it ought to have appraised him of the materials and given him a right to be heard, which it did not do. Alternatively, he would argue that s 69(2) of the Act, which say that in exercising its 'functions' the Board is not bound by the rules of natural justice, is constitutionally invalid.[12]

43 Each of these grounds - the 'beyond power ground', the 'no quorum ground' and the 'natural justice ground' - commences with these words:

The plaintiff seeks from the court an order in the nature of certiorari quashing the defendant's decision of 29 June 2012 to refuse the plaintiff parole in "the foreseeable future" ... .

44 Interesting though they are, it is unnecessary to discuss Mr Knight's further grounds of appeal. Each ground assumes, incorrectly, that the Board made a decision of a fundamentally different nature to the decision which, in my view, it actually made. All are grounds for the one relief - relief in the nature of certiorari - and all suffer from the same vice in that they are directed to a form of relief that is unavailable as a matter of law when one properly characterises the decision that was made and observes its lack of any legal effect.

45 For that reason, the proceeding is foredoomed to fail and I must dismiss the application for leave to commence it.

[1] During argument Mr Knight abandoned ground of Wednesbury unreasonableness (Originating Motion, paragraph 6).

[2] Attorney-General (Vic) v Knight [2004] VSCA 407.

[3] Philip Morris Ltd v Attorney-General (Vic) [2006] VSCA 21; (2006) 14 VR 538 [85], [115] and [152].

[4] Affidavit sworn by Julian Knight, 10 July 2012, paragraph 9.

[6] Transcript of proceedings (25 October 2012, page 13 line 4 and page 23 lines 23-25).

[7] Transcript of proceedings (25 October 2012, page 13 lines 13-16).

[8] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 580 (Mason CJ, Dawson, Toohey and Gaudron JJ); see also 595 (Brennan J).

[9] Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, 159 (Brennan CJ, Gaudron and Gummow JJ).

[10] The Board was constituted by Whelan J (Chair), Curtain J and Dr Kerry-Lee Jones.

[11] Section 64 of the Act permits the Board to exercise its powers and functions in divisions consisting of three members of whom at least one must be a judicial officer. One question raised was whether the decision in this case was made by the Board in 'meeting' or as a division.

[12] A question which Mr Knight argued was left open (not promptly refuted) by the High Court in Saeed v Minister for Immigration and Citizenship (2010) 210 CLR 252 [8].