Plaintiff v Defendant

1 Mr Knight is serving a life sentence at Port Phillip Prison. Since August 2006, he has made no less than 18 applications on various grounds for a personal 'in-cell' computer. Most recently, on 8 May 2013, he wrote to the defendant, the Deputy Commissioner Corrections, seeking permission to purchase his own in-cell computer on the grounds that he required it for the purposes of his legal proceedings and for education and training, and because he was preparing his own suggested parole plan for submission to the Adult Parole Board.

2 On 15 August 2013, the defendant denied Mr Knight permission to purchase an in-cell computer (the 'Decision').

3 Mr Knight now seeks judicial review of the Decision.

4 Because Mr Knight was declared a vexatious litigant in 2004 pursuant to s 21 of the Supreme Court Act 1986 (Vic), Mr Knight required the leave of the Court to bring the proceeding.[1]

5 On 7 March 2014, T. Forrest J ordered that Mr Knight have leave to commence a proceeding to seek relief substantially in the form set out in paragraphs 2(e) and (h) of his Amended Originating Motion dated 27 August 2013.

6 The grounds of review in those paragraphs are as follows:

(e) the defendant took into account an irrelevant consideration, namely the plaintiff's status as a declared vexatious litigant,

(h) the defendant's decision was made for an improper purpose, namely to hinder the plaintiff's prosecution of the proceedings and proposed proceedings that are on foot ...

7 The Court also granted Mr Knight leave to seek declaratory relief on the condition that the declaration be limited to the actual controversies arising out of the Decision.

8 In his reasons for granting leave,[2] T. Forrest J observed that whether Mr Knight's status as a vexatious litigant was relevant to his request for an in-cell computer had been previously raised, but not determined by the Court.[3] His Honour was satisfied that a court hearing this aspect of the proposed proceeding could conclude that Mr Knight's status as a vexatious litigant was irrelevant to the decision to grant him access to an in-cell computer[4] and referred to the following comment made by Maxwell P in Commissioner, Corrections Victoria v Knight & Anor: [5]

It is not at all clear to me how the status of a person as a vexatious litigant could be relevant to the question of that person's access to computer facilities, when the express object of his seeking access is to enable the person to exercise his right to apply for leave to litigate. This is of course a question for the judge who will hear this proceeding.[6]

9 Justice T. Forrest was also satisfied that the evidence could support a finding that the defendant did consider Mr Knight's status as a vexatious litigant when making the Decision.[7]

10 As to the proposed ground relating to improper purpose, T. Forrest J was satisfied that it was at least arguable that if the defendant took Mr Knight's status as a vexatious litigant into account, and if in so doing he had regard to an irrelevant consideration, then this was reflective of the purpose for which the Decision was made and a court might well find that such a purpose was not authorised by the statute creating the power.[8]

11 As to the declarations sought by Mr Knight, T. Forrest J held that it would not be open to the court hearing the proposed proceeding to make declarations in the terms Mr Knight proposed.[9] However, the application could be amended and a court could grant declarations dealing with the actual legal controversies that had arisen as a result of Mr Knight's attempts to gain access to an in-cell computer.[10]

12 By Amended Originating Motion dated 8 April 2014, Mr Knight now seeks an order in the nature of certiorari quashing the Decision and a further order in the nature of mandamus requiring the defendant to reconsider his application for an in-cell computer according to law on the grounds that:

(a) the defendant took into account an irrelevant consideration, namely his status as a declared vexatious litigant; and

(b) the Decision was made for an improper purpose, namely to hinder his prosecution of the proceedings and proposed proceedings that are on foot.

13 The application for judicial review turns on whether the defendant impermissibly took into account, Mr Knight's status as a declared vexatious litigant.

14 Mr Knight also seeks a declaration that his status as a declared vexatious litigant was irrelevant to the determination of his application to purchase an in-cell computer for the purposes of prosecuting numerous court proceedings. In addition, he seeks a declaration that his common law right of unimpeded access to the courts encompasses having meaningful access to the means of producing court documents, or such other declaration as the Court thinks fit.

15 This second form of declaration was not the subject of leave. It will not be considered.

16 There is no specific provision in the Corrections Act 1986 (Vic) (the 'Act') or the Corrections Regulations 2009 conferring a power to grant a prisoner access to a computer or otherwise regulating such access. The rights of prisoners set out in s 47(1) of the Act do not include anything approximating such a right.

17 Section 20 of the Act imposes duties on officers in charge of the prison to take all reasonable steps for the security of the prison (or part of the prison) and for the safe custody and welfare of prisoners. Section 21(1) provides that the Governor of a prison is responsible for the management, security and good order of the prison, and the safe custody and welfare of the prisoners. It has been recognised that the responsibility imposed by s 21(1) carries corresponding duties and implied powers necessary to discharge those responsibilities.[11]

18 As a consequence, a prison Governor has a broad power to regulate the contents of a prisoner's cell, including to permit a prisoner to have an in-cell computer or to refuse permission for an in-cell computer, in the course of the discharge of his or her duty to manage the prison, and to provide for its security and good order and the safe custody and welfare of the prisoners.

19 Pursuant to s 17 of the Act, the Secretary to the Department of Justice has all of the powers of a prison Governor under the Act and may exercise those powers. Pursuant to s 8 of the Act, the Secretary may delegate his or her powers and functions. The Secretary has delegated the s 21 powers and functions to the defendant as Deputy Commissioner.

20 The Deputy Commissioner has issued a policy guideline in relation to prisoners' access to computers. Commissioner's Requirement - Prisoner Property: Prisoner Computers (the 'Policy') contains policies and procedures relating to the purchase or lease of personal computers by prisoners.

21 The Policy outlines three eligibility criteria, at least one of which must be met before access to an in-cell computer will be granted. In addition to meeting one or more of the eligibility criteria, the Policy requires prisoners to meet the 'standards of behaviour criteria.'[12]

22 The relevant parts of the eligibility criteria are as follows:

4.02 Legal Criterion

The prisoner...has an outstanding criminal legal matter or outstanding criminal appeal and it is necessary for the preparation of their case/defence.

[...]

Access to an in-cell computer for outstanding civil matters will be approved only in exceptional circumstances.

4.03 Education/Training Criterion

The prisoner has approval to engage in an education program, either full-time or part-time, for which access to an in-cell computer is necessary (i.e. not just that it would be beneficial). Documentation from the education provider is required to substantiate the prisoner's application for computer equipment (for example, proof of enrolment, reason for in-cell computer and duration of course) and period of approval for in-cell computer access.

[...]

4.04 Exceptional Circumstances Criterion

A prisoner may be granted approval for an in-cell computer where the Prison General Manager or delegate considers that exceptional circumstances exist.

[...]

23 Attachment 1 to the Policy explains the meaning of the word 'necessary' used in the context of the legal and education/training criteria. An in-cell computer may be deemed to be necessary because the amount of time required on the computer to prepare adequately for trial would unreasonably inhibit other prisoners' access to the computer. However the word 'trial' relates to criminal trials only. Attachment 1 also states that permission to access an in-cell computer solely in order to work on civil matters will not ordinarily be granted.

24 Mr Knight's application for access to an in-cell computer, dated 8 May 2013, was made having regard to the legal, education and exceptional circumstances criteria described in the Policy.

25 In relation to the legal criterion, Mr Knight advised the defendant that he was a self-represented plaintiff in ten Supreme Court proceedings, and he listed those proceedings. He advised that constitutional issues arose in two of those proceedings and that he was in the process of making an application to have those issues removed for resolution by the High Court of Australia. He then wrote:

You should note that I am only a declared vexatious litigant in Victoria so I will not require additional leave to institute these proposed proceedings to the High Court.

26 Mr Knight also advised the defendant that he was formulating a submission to the Defence Abuse Response Task Force and he submitted that his current access to prison computers at the prison education centre and library did not give him sufficient time to prepare for the above proceedings. He wrote:

I note that you regularly approve access to a personal in-cell computer for prisoners who are represented in a single criminal proceeding. If you propose to refuse my application, I would appreciate it if you would explain why a represented prisoner in a single criminal case needs access to a personal in-cell computer, but a self-represented prisoner in ten civil proceedings does not.

27 In relation to the education/training criterion, Mr Knight advised that he wished to re-enrol in a Bachelor of Criminology and Criminal Justice course at Griffith University.

28 In relation to the exceptional circumstances criterion, Mr Knight informed the defendant of the following:

As of today, I am in the last 12 months of my minimum term. I am currently preparing my own suggested parole plan for submission to the Adult Parole Board. This plan involves information personal to me and my family members...I, therefore, wish to have access to a personal in-cell computer so that I may prepare this plan without confidential information being on public display...I either have only a year left of my sentence or I am destined to remain in prison indefinitely. Either circumstance supports my need for access to a personal in-cell computer.

29 On 30 July 2013, Mr Knight again wrote to the defendant regarding his application, attaching a timetable for steps in the various Supreme Court, Federal Court and High Court proceedings in which he was a self-represented plaintiff or applicant. He submitted that it was not possible to meet the various dates for the filing of documents, or to prepare for the various hearings, without access to a personal in-cell computer.

30 By letter dated 15 August 2013, the defendant communicated the Decision and gave reasons for refusing the application (the 'Reasons'), noting that the broad position regarding the grounds for approval or non-approval of in-cell computers had previously been set out in his letter to Mr Knight of 24 April 2012. The defendant explained why a represented prisoner in a single criminal case may need access to a personal in-cell computer, but a self-represented prisoner in ten civil proceedings may not. After referring to the fact that the prosecution brief is often provided to the defendant in the form of a CD Rom requiring computer access by the recipient, the defendant raised the difference in the nature of criminal and civil proceedings, pointing out that criminal prosecutions are brought by the State against the defendant while civil proceedings are a matter of choice by the plaintiff. The defendant then wrote:

It is also true that you have elected to bring these ten or more separate proceedings on yourself, as plaintiff, rather than that you are subject to litigation as a defendant. While your status as a vexatious litigant is not a reason per se to deny you access to a computer, it indicates that you have brought proceedings in the past that have been deemed by the Courts to be foredoomed to fail, in light of which the provision of a long list of civil actions that you have on foot does not in itself persuade me to attach much weight to that list of proceedings. [emphasis added]

[...] it would make little sense for me to have a policy position that allowed the granting of an in-cell computer where a prisoner could demonstrate that he or she had a number of civil matters on foot, all issued by the prisoner, and irrespective of either the gravity or merit of those proceedings. Such a policy, it seems to me, would simply invite prisoners who wish to gain access to an in-cell computer to litigate extensively, and I am of the view that this would not be in the public interest.

It also seems to me to be incontrovertible that your capacity to initiate so many civil proceedings clearly demonstrates that your access to the courts has in no way been impeded by the lack of an in cell computer.

31 The defendant's letter to Mr Knight dated 24 April 2012 was prepared in response to an earlier application for access to an in-cell computer. That letter states that Corrections Victoria recognises the benefits of prisoners accessing computers, but when those computers are abused or misused, they can represent a significant risk to the security and good order of the prison; in-cell computers are less easily supervised than computers in communal used spaces within prisons; and the Policy was drafted to strike an appropriate balance between recognising the benefits of in-cell computers and the risk they can pose to the good order of the prison. The eligibility criteria in the Policy are said to be a product of this balancing exercise.

Irrelevant consideration - vexatious litigant status

32 Mr Knight's first ground of review is that that the Decision is vitiated by legal error because the defendant took into account an irrelevant consideration, namely his status as a declared vexatious litigant.

33 An irrelevant consideration is a consideration that 'according to the relevant statute, the decision-maker must not take into account.'[13] Often, as is the case here, the statute does not expressly identify irrelevant considerations. However, they may be inferred. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[14] Mason J said as follows:

In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except insofar as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.[15]

34 The legal boundaries of the implied powers arising from the duties imposed by s 21(1) are therefore to be determined by having regard to the subject matter, scope and purpose of the Act. The relevant purpose of the Act is to provide for the management and security of prisons and the welfare of prisoners. What are relevant and irrelevant considerations for permitting access to in-cell computers will be determined by having regard to the nature and scope of the duty imposed by s 21(1) to manage the prison and provide for its security and good order and the safe custody and welfare of the prisoners.

35 The Policy was made in accordance with and having regard to the responsibilities imposed by s 21(1) of the Act. The Decision was based on an application of the Policy. The Policy outlines eligibility criteria which a prisoner must satisfy before being granted access to an in-cell computer. The legal criterion in the Policy provides that 'access to an in-cell computer for outstanding civil matters will be approved only in exceptional circumstances.'

36 Mr Knight knew that he had to show exceptional circumstances in order to be granted permission for an in-cell computer to enable him to prosecute his many civil proceedings. He therefore put forward a long list of the civil proceedings in which he was involved to support the proposition that his circumstances were exceptional. The number of civil proceedings was what Mr Knight submitted made his circumstances exceptional. The defendant therefore had regard to the list of civil proceedings to which Mr Knight referred in his application. It was necessary for him to consider what weight to give to those proceedings, and he did so.

37 It was in this context that the defendant referred to Mr Knight's status as a declared vexatious litigant. The defendant decided that since all of the listed proceedings had been brought by Mr Knight himself and because, as a declared vexatious litigant, he had previously brought proceedings that were foredoomed to fail,[16] he would not attach much weight to the number of civil proceedings.

38 The defendant explained his reasoning in evidence given in court. In the usual course, it is not open to a defendant to supplement his or her reasons for decision. In East Melbourne Group Inc v Minister for Planning,[17] the Court of Appeal held that a decision-maker should be treated as bound by, and confined to, their reasons for decision.[18] However, as Daly AsJ said in Moreland City Council v Minister for Planning,[19] the purpose of emphasising the pre-eminence of reasons is to bind and confine the decision-maker, not to constrain a party seeking to attack the validity of the decision in question.[20] In this case, Mr Knight sought to attack the Decision by cross-examining the defendant about his reasons for refusing him access to a computer. Mr Knight asked the defendant whether his status as a vexatious litigant was a relevant consideration in deciding whether or not to approve his application. The defendant responded:

I was trying to indicate that your vexatious litigant status was something that I did not take into account. I was very mindful of President Maxwell's views and so I was trying to separate your vexatious litigant status from the considerations that I did think I needed to take into account.

39 When asked about how he dealt with the list of civil proceedings provided by Mr Knight, the defendant said:

...you'd sought to influence my decision by talking of the number of civil cases that you were engaged in so it seemed to me that I had to consider what weight to be given to that number. You were saying no other prisoner has this number of civil cases proceeding at the one time and I was trying to determine whether it was a reasonable thing to give weight to ... and the court previously has found that a number of them were foredoomed to fail and that probably says that the...weight that I ought to give to that large number of civil actions is less than if they were seen to be merit worthy.

40 This accords with the interpretation of the Reasons which is outlined above.

41 There is nothing in the subject-matter, scope or purpose of s 21(1) of the Act which precludes this type of reasoning when considering prisoner access to computers and the application of the Policy. The defendant was invited by Mr Knight to consider the large number of proceedings he had instituted. The defendant was entitled to have regard to the fact Mr Knight had in the past brought proceedings that were vexatious and/or foredoomed to fail in deciding what weight to give to the number of proceedings upon which Mr Knight relied. This is not a case where the Reasons disclose the exercise of discretion to prevent or hinder Mr Knight bringing proceedings because he is a declared vexatious litigant. In my view, the Decision represents the application of the Policy to the facts and circumstances particular to Mr Knight's application.

42 Accordingly, in referring to Mr Knight's declared vexatious litigant status in the Decision, the defendant did not take into account an irrelevant consideration.

44 Mr Knight's second ground of appeal is that the Decision was made for an improper purpose, namely to hinder his prosecution of his civil proceedings, or at least those that may be vexatious or unmeritorious.

45 I have found that the defendant did not impermissibly take into account Mr Knight's status as a vexatious litigant and there is no basis to find that the Decision was made for the improper purpose alleged, namely to hinder Mr Knight's prosecution of his civil proceedings.

47 The grounds of review having not been made out on the facts relating to the Decision, Mr Knight's application for judicial review of the Decision must be dismissed.

[1] The Vexatious Proceedings Act 2014 (Vic) came into operation on 31 October 2014 and repealed s 21 of the Supreme Court Act 1986 (Vic). Orders made under the Supreme Court Act 1986 declaring a person to be a vexatious litigant are taken to be general litigation restraint orders under the Vexatious Proceedings Act 2014 (Vic).

[2] Knight v Wise [2014] VSC 76.

[5] (2010) 31 VR 567.

[7] Knight v Wise [2014] VSC 76, [52].

[10] Ibid [105]; see Robson J in Knight v Hastings & Anor [2010] VSC 99 at [203].

[11] Binse v Williams and Van Groningen [1998] 1 VR 381, 381.

[12] The 'standards of behaviour criteria' provide that in addition to meeting one or more of the eligibility criteria, approval for access to a personal computer will not be granted to a prisoner who has been found guilty of a prison offence within the past twelve months, or where charges are pending. An exception will be made if the computer is required for pending court matters.

[13] Western Australian Land Authority (Land Corp) v Minister for Sustainability, Environment, Water, Population and Communities [2012] FCA 226; (2012) 291 ALR 52 [41].

[14] [1986] HCA 40; (1986) 162 CLR 24.

[16] This statement by the defendant appears to suggest that the applicable legislative test for determining vexatious litigant status is whether a litigant's proceedings are foredoomed to fail. That is one of the tests that applies for determining whether a declared vexatious litigant should have leave to bring proceedings. In determining the plaintiff's vexatious litigant status the Court was required to apply the test in s 21(2) of the Supreme Court Act 1986, which enabled the Court to make an order declaring a person to be a vexatious litigant if satisfied that the person had (a) habitually; and (b) persistently; and (c) without any reasonable ground instituted vexatious legal proceedings. From 31 October 2014 the Vexatious Proceedings Act 2014 (Vic) replaced the provisions in the Supreme Court Act 1986 (Vic) in relation to vexatious litigants.

[17] [2008] VSCA 217; (2008) 23 VR 605.

[19] [2014] VSC 468.