Plaintiff v Defendant

1 Mr Knight is a vexatious litigant who is subject to a general litigation restraint order. Mr Knight has sought to bring various legal proceedings throughout his imprisonment at Port Phillip Prison, where he is currently incarcerated with a sentence of life imprisonment and a minimum non-parole period of 27 years for murders he committed in 1987 near Hoddle Street, Clifton Hill.[1]

2 Mr Knight seeks leave to commence proceedings in the nature of judicial review against the Minister for Corrections ('the Minister'). Mr Knight seeks an order of the Court that the decision of the Minister not to allow the sale and use of e-cigarettes in Victorian prisons be quashed on the ground that he failed to take into account relevant considerations relating to the management, security and good order of prisons and the safe custody and welfare of prisoners and prison staff. Mr Knight further seeks that the Court order the Minister to reconsider his decision not to approve the sale and use of e-cigarettes in Victorian prisons according to law.[2]

3 Under the general litigation restraint order, Mr Knight must obtain leave of the Court to issue such a proceeding. Section 55 of the Vexatious Proceedings Act 2014 ('the Act') states that the Court may grant leave to commence a proceeding if it is satisfied that the proceeding is not a vexatious proceeding and there are reasonable grounds for the proceeding.

4 Mr Knight contends that the proposed proceeding would not be a vexatious proceeding and that there are reasonable grounds for the proposed proceeding, namely that the proposed proceeding concerns a decision of the Minister that is subject to judicial review, and there is circumstantial evidence that the Minister has failed to take into account relevant considerations before making the decision not to approve e-cigarettes for sale and use in Victorian prisons.[3]

5 Mr Knight's application was accompanied by an affidavit that purported to disclose the details required under s 56 of the Act, which are explained below.

6 I consider that Mr Knight's application for leave to commence the proposed proceeding ought to be refused for the reasons set out below.

7 On 19 October 2004 this Court declared Julian Knight a vexatious litigant pursuant to s 21 of the Supreme Court Act 1986.[4] On the order of Smith J, Mr Knight was restrained from commencing legal proceedings in this Court, an inferior court or a tribunal for a period of 10 years. Due to the introduction of the Act, s 21 of the Supreme Court Act was repealed and Mr Knight was made subject to a general litigation restraint order on 16 October 2014.[5] The 16 October 2014 general litigation restraint order extended Mr Knight's status as a vexatious litigant until the determination of a summons filed 5 September 2014 by the Attorney-General of Victoria to extend the 19 October 2004 order. That summons is listed for hearing on 10 June 2015.

9 Section 55 of the Act says that on an application under s 54, the Court may grant leave to commence a proceeding if it is satisfied that:

(a) the proceeding is not a vexatious proceeding; and

(b) there are reasonable grounds for the proceeding.

10 Mr Knight contends that the proposed proceeding would not be a vexatious proceeding and that there are reasonable grounds for the proposed proceeding.

11 Section 3 of the Act defines 'vexatious proceeding' as including:

(a) a proceeding that is an abuse of the process of a court or tribunal;

(b) a proceeding commenced to harass or annoy, to cause delay or detriment, or for another wrongful purpose;

(c) a proceeding commenced or pursued without reasonable grounds;

(d) a proceeding conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

12 The onus is on the applicant to prove that the proposed proceeding is not a vexatious proceeding and that there are reasonable grounds for the proceeding.[6]

13 Under s 56 of the Act the applicant must provide an affidavit in support of the application, which discloses the following details:

(1) details of each application for leave to proceed made by the person;

(2) details of each application for leave to commence or continue a proceeding made by the person under s 21 of the Supreme Court Act 1986, as in force immediately before its repeal;

(3) details of each interlocutory application made or proceeding commenced or conducted by the person -

• (a) that is a vexatious application or a vexatious proceeding; or
• (b) which has been stayed or dismissed on the basis of being made, commenced or conducted without merit;

(4) an explanation as to how the application for leave to proceed is materially different to each application referred to in paragraph (1), (2) or (3) (if any);

(5) all other facts material to the application, whether in support of or adverse to the application, that are known to the person.

14 Mr Knight's application was accompanied by an affidavit that purported to disclose those details. However, the affidavit does not provide all of the information required under s 56 of the Act.

15 Under s 63 of the Act, the Court may determine an application for leave to commence a proceeding on the basis of written submissions without an appearance by the applicant. The application before me has been dealt with in this manner.

16 Mr Knight has made two previous applications under s 54 of the Act. The first related to prisoner privileges and was dismissed by Ginnane J on 13 February 2015.[7] The second related to the general prohibition on smoking in Victorian prisons and was dismissed by McMillan J on 5 March 2015.[8]

17 In Knight v Minister for Corrections,[9] Mr Knight's proposed proceeding sought a declaration that Corrections Victoria's policy prohibiting smoking in Victorian prisons, due to commence on 1 July 2015, was ultra vires or made for an improper purpose.

18 Mr Knight submitted that the prohibition was a 'punitive measure', making an 'otherwise legal activity illegal within the confines of the prison'. He referred to the duties of prison officers in relation to security and prisoner welfare under ss 20(1) and 21(1) of the Corrections Act 1986. Mr Knight submitted that those provisions empower prison general managers to permit smoking by prisoners in spite of any general regulation or policy prohibiting smoking in prisons.[10]

19 McMillan J was not satisfied that Mr Knight's proposed proceeding had reasonable grounds pursuant to s 55(b) of the Act.[11] Her Honour found that the policy to prohibit smoking in Victorian prisons was not ultra vires or made for an improper purpose.[12]

20 A number of Mr Knight's submissions in Knight v Minister for Corrections are repeated in the application before me. As some of the issues raised in Mr Knight's current application were dealt with by her Honour in that case, I do not propose to conduct a detailed analysis of those matters, or indeed a review of her Honour's decision.

21 The Corrections Amendment (Smoke-Free Prisons) Act 2014 amended the Corrections Act 1986. Section 1 of the Corrections Amendment (Smoke-Free Prisons) Act 2014 states as follows:

(a) the Corrections Act 1986 to provide for the prohibition and regulation of smoking and the entry, use and possession of tobacco products and tobacco smoking accessories in prisons; and

(b) the Tobacco Act 1987 to remove the exception relating to prison cells and exercise yards from the offence of smoking in an enclosed workplace.

22 The Governor in Council has the power to make regulations in relation to the management, good order and security of prisons. Section 112 of the Corrections Act 1986 states as follows:

(1) The Governor in Council may, subject to disallowance by Parliament, make regulations for or with respect to any of the following matters -

(a) the management, good order and security of prisons and locations and the discipline and welfare of prisoners and offenders, the privileges of prisoners and the procedures for hearing and dealing with prison offences and acts of misconduct by offenders ...

23 The Corrections Amendment (Smoke-Free Prisons) Act 2014 gave additional powers to the Governor in Council. The Governor in Council may now make regulations in relation to the prohibition and regulation of smoking in a prison or in any part of a prison, and in relation to the prohibition and regulation of entry, use and possession of tobacco products and tobacco smoking accessories in a prison or in any part of a prison.[13]

24 The Corrections Amendment (Smoke-Free Prisons) Act 2014 does not make reference to e-cigarettes or their status in Victorian prisons.[14] In the debate following the second reading speech, it was stated that the prohibition applies to e-cigarettes that contain liquid nicotine, which are illegal in Victoria.[15]

25 The following definition of 'e-cigarette' and explanation as to the status of e-cigarettes in Victorian prisons were given:

An e-cigarette is a battery-powered device which has a refillable cartridge that delivers nicotine and sometimes other chemicals. These e-cigarettes will not be permitted.[16]

...

Other types of e-cigarettes are permissible, although I note that while e-cigarettes are often advertised, the health issues relating to them are not well understood. E-cigarettes that use nicotine, however, are banned. The nicotine used in them comes in a liquid form and is therefore a controlled drug under the Drugs, Poisons and Controlled Substances Act 1981. There is also a considerable amount of information indicating a danger associated with nicotine in liquid form. I understand in the United States there have been instances of overdoses involving nicotine in liquid form.[17]

26 Mr Knight submits that the question for resolution by the Court is the following:

Did the Minister for Corrections or his delegate fail to take into account relevant considerations relating to the management, security and good order of prisons and the safe custody and welfare of prisoners and prison staff when he decided not to approve the sale and use of e-cigarettes in Victorian prisons?

27 Mr Knight refers to ss 20(1) and (2) of the Corrections Act 1986, which outlines the duties of an officer in charge of a prison to take reasonable steps for the security, safe custody and welfare of prisoners. Mr Knight also refers to s 21(1) of the Corrections Act 1986, which 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.

28 Mr Knight submits that section 21(1) of the Corrections Act 1986 empowers a prison Governor to decide to allow the sale and use of e-cigarettes, in spite of any general departmental policy prohibiting the sale and use of e-cigarettes.

29 Mr Knight refers to policies implemented pursuant to the Commissioner's Requirement that recognise the power of prison Governors to authorise smoking pursuant to s 21 of the Corrections Act 1986. He submits that:

In every jurisdiction both in Australia and overseas (USA & New Zealand) where a total smoking ban has been implemented there has been an increase in reported incidents of violence, both in terms of assaults by prisoners on other prisoners and assaults by prisoners on prison staff, in that jurisdiction's prisons.

It is my belief that the total smoking ban in prisons in New Zealand and Queensland have been partially overturned due to the increased rate of violence in those jurisdictions' prisons.

E-cigarettes that are appropriate for use in prisons (ie that address relevant security concerns) are commercially available.

E-cigarettes provide the 'happy medium' between the twin issues of creating a healthier workplace and living area, and maintaining a safe workplace and living area in the prison environment.

In addition to the obligations placed on them by sections 20(1) & (2) & 21(1) of the Corrections Act, prison governors are also obligated to maintain a safe workplace pursuant to the Occupational Health & Safety Act 2004 (Vic).

Power to allow smoking in certain circumstances

30 In his affidavit, Mr Knight quoted the following extract from page 3 of the Commissioner's Requirement 2/2006 concerning Smoking in Prisons:

... it is acknowledged that there are unique circumstances which exist within the prison environment, where as a result of the safety and security issues which exist in such an environment, the [Smoke-Free Work Environment] policy is unable to be fully enforced.

31 Mr Knight also referred in his affidavit to page 2 of the August 2012 Commissioner's Requirement concerning Smoking in Prisons, which stated that in the exercise of their general powers under s 21 of the Corrections Act 1986:

... Prison General Managers may wish to permit a prisoner to smoke in their cell, where that cell has been designated as a smoking cell. Such circumstances could include, where a prisoner suffers from acute mental illness and nicotine withdrawal would not assist their treatment, or during protected emergency situations where the prison regime only permits restricted time out of cell.

32 The affidavit included an extract from the Victorian Ombudsman's July 2006 report entitled 'Conditions for persons in custody', which states:

The prohibition on smoking within the watch-house was the single most frequent source of complaint and cause of distress from detainees. A very high percentage of detainees are smokers (around 80-90 per cent by one estimate) and the effects of withdrawal from cigarettes can be very unsettling. In 2005 most cells have no access to outside areas and fresh air and smoking is generally not allowed inside. Detainees denied access to cigarettes can be highly disruptive, cause incidents and create considerable management problems for police. It is perceived by prisoners as a punitive measure.

33 Mr Knight exhibits to his affidavit two newspaper articles from January 2014 and February 2015 discussing the use of e-cigarettes in prisons in the United States, and two articles from the Herald Sun dated 3 February 2015 discussing potential consequences of the smoking ban, including disruption and riots.

34 Mr Knight submitted in his letter to Corrections Victoria that the duties imposed under s 21(1) of the Corrections Act 1986 in relation to the management, security and good order of the prison and the safe custody and welfare of prisoners, 'dictate that the immediate risk of ongoing disruption outweighs the possibility of future health concerns'. Mr Knight stated that the ban on smoking is perceived to be a punitive measure and that Victorian prisons are 'already essentially smoke-free (i.e. smoking is only permitted in designated smoking cells during lockdown hours)'.

35 Section 112 of the Corrections Act 1986 confers an explicit power on the Governor in Council to make regulations regarding smoking in Victorian prisons.[18] McMillan J said in Knight v Minister for Corrections that:

... if a prison officer could establish a policy contrary to a regulation made by the Governor in Council pursuant to a general provision relating to management, that specific section would be rendered otiose.

Accordingly, the question as to whether or not ss 20(2) and 21(1) confer a power on a prison officer to allow smoking notwithstanding the general prohibition on smoking is not a question that constitutes a reasonable ground for the proposed proceeding to be given leave of the Court.[19]

36 McMillan J outlined that the objects of the Corrections Amendment (Smoke-Free Prisons) Act 2014 and the Tobacco Act 1987 are to regulate smoking in Victorian prisons for health reasons:

Thus, the regulation prohibiting smoking in Victorian prisons was made for the proper purpose of facilitating both prisoners and prison staff in quitting smoking in line with the long-held anti-smoking policies referred to in the plaintiff's submissions and affidavit material.[20]

37 The Commissioner has a general power under s 112 of the Corrections Act 1986 to make regulations in relation to the management and security of prisons, as well as the welfare of prisoners.[21] To use her Honour's words, the question as to whether or not prison officers may allow prisoners to smoke e-cigarettes in certain circumstances, in spite of a general ban on smoking and e-cigarettes in prisons, does not constitute a reasonable ground for the purposes of the Court giving leave to proceed.[22] I do not propose to conduct any further analysis on the matter.

38 Mr Knight notes in his affidavit that '[t]he sale of nicotine-laced e-cigarettes is banned in Victoria'. He deposes that '[e]-cigarettes that contain no nicotine, however, are legally available in Victoria'.[23]

39 Mr Knight wrote to Corrections Victoria on 19 October 2014 proposing that the Commissioner of Corrections Victoria approve the sale and use of e-cigarettes in Victorian prisons. Mr Knight stated the following:

I submit that the introduction of e-cigarettes as a substitute for tobacco products would address the twin considerations of promoting a healthy environment and acknowledging the 'unique circumstances which exist within the prison environment'.[24]

40 In Knight v Minister for Corrections, McMillan J considered that just because an activity is otherwise legal outside of a prison does not mean that regulating the same activity in prison is ultra vires or done for an improper purpose. Her Honour said:

People who are convicted of crimes and sentenced to prison routinely lose the right to engage in activities that are otherwise legal by way of their incarceration. For example, the legislature has validly enacted legislation at the Commonwealth level to prevent prisoners with sentences of longer than three years in duration from voting, despite the fact that the right to vote is protected under the Constitution. The 'right to smoke' is not protected under the Constitution and, in any hierarchy of rights, it is a liberty that is easily derogated from by legislation such as the Tobacco Act 1987 or by regulation under an act of parliament.[25]

41 The fact that non-nicotine e-cigarettes are legally available in Victoria is not relevant when considering whether they should be prohibited in Victorian prisons. Prisoners do not have an entitlement to smoke e-cigarettes simply because they are available in the wider community.

Appropriateness of non-nicotine e-cigarettes for the prison environment

42 Mr Knight stated in his letter to the Commissioner dated 19 October 2014 that 'pre-loaded e-cigarettes are already available in the community, and that there are no health concerns or (in the prison context) security issues with these products'.[26]

43 Corrections Victoria responded to Mr Knight via letter dated 19 November 2014, stating the following:

... E-cigarettes and their cartridges containing nicotine are prohibited in Victoria. Under the Drugs, Poisons and Controlled Substances Regulations 2007, it is illegal to manufacture, sell, supply, purchase or otherwise obtain, possess or use an e-cigarette or cartridge for an e-cigarette containing nicotine (effective 1 January 2009). As such, these devices cannot be approved for use in Victoria's prison[s]. In relation to e-cigarettes that do not contain nicotine, these items are also prohibited in prisons due to security concerns.[27]

44 Corrections Victoria also wrote to Mr Knight on 24 December 2014, in response to a letter from Mr Knight in relation to 'Current Litigation and Corrections Issues', including the policy banning e-cigarettes in Victorian prisons. Acting Commissioner Rod Wise advised Mr Knight that:

... Non-nicotine e-cigarettes are prohibited by Corrections Victoria for use within Victorian prisons due to security concerns regarding their use within this type of environment. I understand that the Government is not contemplating any change to the introduction of smoke free prisons or the banning of e-cigarettes. I am also aware that the Supreme Court recently dismissed your application for leave to review the ban on smoking on its own motion.[28]

45 Mr Knight wrote to Corrections Victoria on 4 January 2015 requesting that it explain what 'security concerns' there were in relation to the use of non-nicotine e-cigarettes in Victorian prisons.[29] In a letter dated 13 January 2015 Mr Wise wrote to Mr Knight stating that the security concerns regarding non-nicotine e-cigarettes in Victorian prisons 'include, but are perhaps not limited to, being able to conceal contraband'.[30]

46 Corrections Victoria has accordingly explained that non-nicotine e-cigarettes raise security concerns in the prison environment as they can be used to conceal contraband. The Commissioner's security concerns were not limited to the concealment of contraband and it would not be prudent or necessary for the Commissioner to outline in detail the other potential uses of e-cigarettes that may cause a security risk. The potential for e-cigarettes to be used to conceal contraband is a sufficient concern in itself to invoke the power under s 112 of the Corrections Act 1986.

47 The Commissioner has broad powers under s 112 to make regulations in relation to the security and good order of prisons, the welfare of prisoners, and in relation to smoking and the use of tobacco products. E-cigarettes containing nicotine are illegal in Victoria. As outlined in the second reading debate for the Corrections Amendment (Smoke-Free Prisons) Act 2014, the health impacts of non-nicotine

e-cigarettes are not yet clear. Nevertheless, the Commissioner has outlined that

e-cigarettes raise security concerns. The decision to prohibit non-nicotine

e-cigarettes on that basis fits squarely within the Commissioner's powers under s 112. Mr Knight has not established that there are reasonable grounds for the proceeding.

48 Mr Knight has not established that there are reasonable grounds for the proposed proceeding, and I am not satisfied that the proposed proceeding is not a vexatious proceeding under s 55 of the Vexatious Proceedings Act 2014. Mr Knight's application for leave is dismissed.

[1] Knight v Money [2015] VSC 105 [1]-[3].

[2] Affidavit of Julian Knight sworn 17 March 2015.

[3] Affidavit of Julian Knight sworn 17 March 2015.

[4] Attorney-General (Vic) v Knight [2004] VSC 407.

[5] Attorney-General (Vic) v Knight [2014] VSC 549.

[6] Knight v Money [2015] VSC 105 [12].

[7] Knight v Shuard [2015] VSC 36.

[8] Knight v Minister for Corrections [2015] VSC 56.

[13] Corrections Act 1986 s 112(1)(ab), (ac).

[14] Victoria, Parliamentary Debates, Legislative Assembly, 25 June 2014, 2321 (Martin Pakula).

[15] Ibid, 2331 (Jane Garrett) and 2324 (Timothy McCurdy).

[18] Corrections Act 1986 s 112(1)(ab).

[19] [2015] VSC 56 [32]-[33].

[21] Corrections Act 1986 s 112(1)(a).

[22] Knight v Minister for Corrections [2015] VSC 56 [32]-[33], [38]-[40].

[23] Drugs, Poisons and Controlled Substances Regulations 2006; Affidavit of Julian Knight sworn 17 March 2015 [39], [52].

[24] Affidavit of Julian Knight sworn 17 March 2015, ex JK-3.

[25] Knight v Minister for Corrections [2015] VSC 56 [35].

[26] Affidavit of Julian Knight sworn 17 March 2015, ex JK-3.