Plaintiff v Defendant

1 The plaintiff is a vexatious litigant who is subject to a general litigation restraint order. He is serving a sentence of life imprisonment at Port Phillip Prison ('PPP'), with a minimum non-parole period of 27 years for murders he committed in 1987 near Hoddle Street, Clifton Hill.[1] The plaintiff has sought to bring various legal proceedings throughout his imprisonment.

2 By originating motion filed on 26 March 2013, the plaintiff seeks leave to bring proceedings for a mandatory injunction and declaratory relief, in relation to the pricing and sale of tobacco products to prisoners at PPP. His application concerns the 2006 decision of the Director of PPP to impose a 'levy' of 20% of the Recommended Retail Price ('RRP') on all cigarettes and tobacco sold to prisoners.

3 The plaintiff relies on his affidavit affirmed on 26 March 2013 and his outline of submissions dated 13 May 2015. The proposed defendant relies on the affidavit of Ian Pugh Thomas sworn on 7 June 2013, submissions dated 14 June 2013, and supplementary submissions dated 24 May 2015.

4 The plaintiff seeks a mandatory injunction ordering the proposed defendant to repay amounts paid by the plaintiff pursuant to the levy since 19 June 2007 (the date the plaintiff entered PPP), which the plaintiff alleges were used for purchases or payments unconnected with smoking cessation programs.[2]

5 The plaintiff also seeks a declaration that the decision of the proposed defendant to increase the price of cigarettes and tobacco sold to prisoners at the prison beyond the amount of the 1 February 2013 Federal excise increase is unjust enrichment.[3]

6 On 19 October 2004 this Court declared the plaintiff a vexatious litigant pursuant to s 21 of the Supreme Court Act 1986.[4] On the order of Smith J, the plaintiff 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to the introduction of the Vexatious Proceedings Act 2014 ('VPA') on 31 October 2014, s 21 of the Supreme Court Act was repealed and the plaintiff was made subject to a general litigation restraint order.[5] By s 91(2) of the VPA, the terms of the general litigation restraint order are taken to be the same as the terms of the order made under s 21(2) of the Supreme Court Act unless the terms are otherwise varied or revoked.[6] The terms of the general litigation restraint order are that the plaintiff must not commence proceedings without leave, and that order was still in place on the date of the hearing of this application.

7 Section 21(4) of the Supreme Court Act provided that:

Leave must not be given unless the Court, or if the order under subsection (2) so provides, the inferior court or tribunal, is satisfied that the proceedings are not or will not be an abuse of the process of the Court, inferior court or tribunal.

8 Section 54(1) of the VPA provides that:

A person who is subject to a general litigation restraint order may apply to a Victorian court or tribunal for leave to commence or continue a proceeding.

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:

the proceeding is not a vexatious proceeding; and

there are reasonable grounds for the proceeding.

10 Part 12 of the VPA contains transitional provisions in ss 92 and 93, to the effect that:

an application made but not heard or determined before the repeal of s 21 of the Supreme Court Act is taken to be an application made pursuant to s 28 of the VPA;[7] and

s 21 of the Supreme Court Act despite its repeal continues to apply to an application which the Court has begun to hear but not determined, and that any order declaring a person to be a vexatious litigant take effect as a general litigation restraint order made under s 29 of the VPA.[8]

There are no specific transitional provisions dealing with the making of an application that was made when the previous legislation was on foot but had not been heard.[9]

11 In Knight v Shuard, Ginnane J accepted in obiter dicta that s 55 of the VPA applies to an application for leave made before s 21 of the Supreme Court Act was repealed. Nevertheless, his Honour stated that he would have reached the same conclusion if the test in s 21 had been applied.[10]

12 Knight v Money[11] concerned an application made and heard before the repeal of s 21. The application had not been determined at the time of the repeal. Cavanough J referred to s 14(2) of the Interpretation of Legislation Act 1984, which provides that:

b. expires, lapses or otherwise ceases to have effect -

the repeal, amendment, expiry, lapsing or ceasing to have effect of that Act or provision shall not, unless the contrary intention expressly appears -

c. revive anything not in force or existing at the time at which the repeal, amendment, expiry, lapsing or ceasing to have effect becomes operative;

d. affect the previous operation of that Act or provision or anything duly done or suffered under that Act or provision;

e. affect any right, privilege, obligation or liability acquired, accrued or incurred under that Act or provision;

f. affect any penalty, forfeiture or punishment incurred in respect of an offence committed against that Act or provision; or

g. affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as is mentioned in paragraphs (e) and (f) -

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if that Act or provision had not been repealed or amended or had not expired, lapsed or otherwise ceased to have effect.

13 His Honour considered that s 14(2) required the Court to hear and determine the plaintiff's application as though s 21 of the Supreme Court Act had not been repealed. As such, his Honour assumed that the application heard before the repeal of s 21 should be determined pursuant to s 21(4).[12]

14 The proposed defendant submits that s 14(2) of the Interpretation of Legislation Act does not apply for the following reasons:

The plaintiff's ability to apply for leave was not a 'right, privilege, obligation or liability' within the meaning of s 14(2). Pursuant to s 21 of the Supreme Court Act, the ability to bring proceedings depends on the Court's discretion and is not contingent on a non-discretionary decision to enable implementation.[13] Further, a vexatious litigant's 'right' to apply to bring a proceeding is not a substantive right and is not protected by s 8 of the Interpretation of Legislation Act. The plaintiff's ability to apply for leave was no more than a 'hope that a right to bring proceedings might be created on determination of the application'.[14]

15 The VPA replaces the regime under s 21 Supreme Court Act.[15] The VPA regime is exhaustive and expresses a contrary intention displacing the application of s 14(2) of the Interpretation of Legislation Act.

16 In Hicks v Aboriginal Legal Service it was held that an application for a grant of money for legal representation was, in the following terms:

... neither the initiation of something in the nature of a cause of action, nor an investigation in respect of a right, but instead began an investigation to decide whether some right should or should not be given, or involved procedural steps to decide if a benefit should be granted ...[16]

17 Reference was made to the statement of the Privy Council in Director of Public Works v Ho Po Sang that:

... there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given. Upon a repeal the former is preserved by the Interpretation Act. The latter is not.[17]

18 The case of NSW Aboriginal Land Council v Minister concerned an application made in 1984 under the Aboriginal Land Rights Act 1983. That application was affected by the introduction of the Aboriginal Land Rights (Amendment) Act 1986. Hope JA held that:

... a statutory right will be preserved notwithstanding the repeal or amendment of the statute even though the right can only be implemented by a non-discretionary decision of an official or a court, provided that the statutory machinery for obtaining that decision has been set in train before the repeal or amendment.[18]

19 Hope JA stated that although the Land Council had a statutory right in respect of the relevant land, 'it was conditional on the court affirming and implementing it'. However, 'the facts were such that the court would have been bound to allow the appeal and to order the transfer of the land in fee simple'.[19]

20 I agree that the ability to apply for leave to bring proceedings under s 21(4) was not a right in the nature of that described by Hope JA. The Court is not bound to allow the application and has the discretion to refuse it. Although the plaintiff in this case set in train the proceeding under s 21(4), the implementation of the proceeding would be through the Court's discretion. There is therefore no substantive right for a vexatious litigant to bring a proceeding that can be preserved under s 8 of the Interpretation of Legislation Act.

21 I accept the proposed defendant's submissions in relation to the application of the VPA.[20] The plaintiff did not oppose the proposed defendant's submissions on this point. I do note that the requirements for proving that the proposed proceeding is not a vexatious proceeding are more onerous under the VPA than under the Supreme Court Act. As Cavanaugh J acknowledged in Knight v Money:

Plainly the new test is more difficult for a leave applicant to meet than the old test. Not only must the Court be satisfied that the proposed proceeding would not be an abuse of process, it must also be satisfied that the proposed proceeding would not otherwise be a 'vexatious proceeding' (as defined) and, moreover, that there are 'reasonable grounds for the proceeding'. The onus remains with the applicant; and a residual discretion to refuse leave also remains.[21]

22 As such, I accept the submission that the regime under the VPA displaces the application of s 14(2) of the Interpretation of Legislation Act and replaces the regime under s 21 of the Supreme Court Act. In any case, I am of the opinion that the application before me would reach the same conclusion if considered under the Supreme Court Act regime.[22]

23 Section 55 of the VPA 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.

24 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.

25 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.[23]

26 Section 56(1) of the VPA states that a person subject to a litigation restraint order who makes an application for leave to proceed must disclose the following details to the Court:

(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, 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); and

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

27 Section 56(2) states that a disclosure under subsection (1) must be made by affidavit unless the rules of the Court otherwise provide, or the Court otherwise orders.

28 The affidavit enclosed in the plaintiff's application does not provide all of the information required under s 56.[24]

29 The proposed defendant did not submit that the application be struck out on that basis, noting that the plaintiff's application appears to be compliant with the rules in place at the time it was made.[25] The plaintiff made his application under the Supreme Court Act at a time when he was not required on any view to comply with the VPA.[26]

30 I consider that it cannot be in the interests of justice to strike out the plaintiff's application on the basis that he has failed to provide an affidavit that was not required at the time that he initially made his application.[27]

31 However, in the context of an application made under the VPA, I consider that the failure to provide an affidavit as required under s 56 could be a basis for striking out the application at a preliminary stage. That is, failing to fulfil the requirements specified in s 56 could be fatal to the application as opposed to a mere procedural defect that can be cured.

32 In the debate following the second reading speech for the Vexatious Proceedings Bill 2014, it was stated that:

The effective management and control of vexatious litigation is important to ensure an efficient and effective justice system. Although small in number, some individuals use the mechanisms of the law to repeatedly bring unmeritorious actions against other individuals and against organisations. These litigants consume a disproportionate amount of court and tribunal time and resources, which creates delays in the courts and reduces access to justice for other members of the community who have meritorious claims.

...

In deciding whether to make a litigation restraint order, a court or VCAT is able to take into account any matter it considers relevant, including a person's full litigation history (in both Victoria and in other Australian jurisdictions) and the manner in which the person has conducted litigation in the past. This overcomes a recognised limitation of the current system, which does not allow for consideration of some types of prior litigation such as interlocutory applications and appeals from interlocutory decisions.[28]

The important provision set out in the bill is that matters must be disclosed in the first instance, so an application for leave must disclose the following: all previous leave applications made by the person; details of previous vexatious proceedings and the applications or proceedings which may have been stayed or dismissed on the basis of being made, commenced or conducted without merit; and an explanation as to how the leave application is materially different from previous applications.[29]

34 Section 56 therefore requires applicants to provide information in relation to their full litigation history and the manner in which the applicant has conducted litigation in the past. The Court can now consider such factors in determining whether to grant leave. It also places the onus on the applicant to prove how the proposed proceeding is different from previous applications, as well as all other facts material to the application, whether in support of or adverse to the application.[30]

35 This is consistent with Cavanaugh J's observations in Knight v Money that 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.[31] His Honour also stated that 'a residual discretion to refuse leave also remains',[32] which I consider may apply in circumstances where the applicant fails to produce an affidavit that is compliant with s 56.

36 PPP is a maximum security prison operated by G4S Custodial Services Pty Ltd. The General Manager of PPP has the responsibilities of Governor of the prison for the purposes of the Corrections Act.[33] In 2006 the position of General Manager of PPP was known by the title of Director of PPP.[34]

37 In 2004, the Commissioner of Corrections Victoria's Requirement in relation to 'Smoking in Prisons' was issued, which introduced measures intended to promote a smoke free environment policy in public prisons.[35] Imposing a 'tobacco levy' through the charging of prisoners for tobacco products at standard community prices was one such measure.[36]

38 PPP purchases cigarettes and tobacco at wholesale prices (80% of RRP) and on-sells them to prisoners. In 2006 a decision was made to increase the price of tobacco products sold at PPP to the RRP, which was consistent with the 2004 decision of the Commissioner of Corrections Victoria to increase tobacco prices to RRP in public prisons.[37] The 20% difference between the wholesale price and the RRP constitutes the 'tobacco levy'. The funds raised by this levy were stated in a notice issued by Mr Dennis Roach, the then Director of PPP, to be directed towards smoking cessation (QUIT) programs for prisoners.[38]

39 In 2006 the Commissioner's Requirement was re-issued to extend the smoke free environment policy to private prisons.[39] The Commissioner's Requirement, Smoking in Prisons, dated 1 March 2006, states as follows:

The revised Commissioner's Requirement is intended to result in greater consistency across the system through the systematic implementation of the policy and achieve greater compliance with legislative and policy requirements.[40]

40 The 2006 Commissioner's Requirement also stated that 'The General Manager/Director of the prison is responsible for implementation of the Smoke Free Work Environment policy within the prison'. It further stated that this responsibility included, but was not limited to 'ensuring that all staff and prisoners are apprised of this policy and its implications' and 'providing access to health promotion and smoking cessation programs for prisoners and staff'.[41]

41 In May 2006, Mr Roach, issued an interim Operational Instruction 102 'Smoke Free Environment' relating to the Smoke Free Environment policy.[42] The document stated that PPP would make smoking cessation and health promotion programs available to prisoners and staff who need assistance. It outlined the responsibilities set out in the Commissioner's Requirement 2/2006, disciplinary measures for smoking in unauthorised areas, and support measures for prisoners and staff in complying with the Smoke Free Environment policy.[43]

42 In July 2006 Mr Roach gave notice to staff and prisoners of an increase in the price of tobacco products to the RRP, consistent with other Victorian Prisons. Ian Thomas stated in his affidavit that:

I am informed by Mr Roach and believe that he determined to increase the price of tobacco at PPP to Recommended Retail Price ('RRP') consistent with the Commissioner's Requirement and that he thought the pricing was for appropriate for prisoner welfare [sic]. Mr Roach also informed me that his secondary consideration was that the increased price might create a tipping point for some prisoners which would encourage them to give up smoking.[44]

43 Since 31 July 2006 tobacco has been sold at the applicable RRP. The plaintiff was accommodated in PPP in June 2007.[45]

44 Mr Thomas deposes that the difference between the RRP and the wholesale price of tobacco products purchased by G4S has been directed to a Prisoner Amenities account with the intention that the funds would:

... enhance prisoner welfare in a number of ways including smoking cessation programs and other items to assist prisoners stop using tobacco. Nicotine patches are part of the smoking cessation programs funded by the account, but are only made available to prisoners screened and approved for the program because of the health and security risks of making patches available to the prison community generally.[46]

45 The retail price of cigarettes and tobacco increases automatically twice each year on 1 February and 1 August pursuant to a federal excise.[47] The plaintiff deposed that on 1 February 2013 the tax on cigarettes increased by between 11 cents and 28 cents a packet, and that the cost of cigarettes rose to between $1.00 and $1.10.[48]

46 Similar relief has been previously been sought by the plaintiff on the issue of pricing and sale of tobacco products in prisons. In Knight v Secretary to the Department of Justice ('Knight v Secretary'),[49] McMillan J made a declaration that a 1993 decision to impose the 'Corrections Victoria Tobacco Levy' was ultra vires on the basis that there was no authorised decision-maker that was able to be identified. Her Honour was not satisfied that the General Manager, Prison Operations and the Director of Correctional Services had satisfied the requirements of s 17 of the Corrections Act as it stood in 1993, and as such were unable to exercise the powers or functions of a governor or prison officer under ss 20 and 21 of the Corrections Act.[50] However, her Honour declared that the Commissioner's decision to raise the amount of the levy in 2004 was valid, as it related to prisoner welfare and was made pursuant to ss 20 and 21 of the Corrections Act.[51]

The list of key tasks as set out on the Commissioner's Requirement, when read to together, indicate that the purpose behind the decision to raise the price of cigarettes was to fund and explore more alternatives for cessation and health promotion programs and was to fund and explore more alternatives for cessation and health promotion programs and was to decrease the amount of smoking in prisons. While it is not expressly stated in the Commissioner's Requirement that the increase in price was to act as a deterrent to smoking, I am of the opinion that the evidence establishes that this was one of the purposes for increasing the levy.[52]

48 Specifically, the objectives of the Commissioner's decision were to:

(a) make products available for purchase to prisoners at the prison canteen;

(b) price tobacco products at a level that allows part of that price to be used for smoking cessation and related health purposes; and

(c) ensure actions taken in relation to pricing and use of levy funds are reasonable and adapted to the achievement of those objectives, and so are authorised by ss 20 and 21 of the Act.[53]

49 Her Honour also found that the levy was not a tax but a payment for goods acquired for value. Her Honour identified a discernable relationship between the price paid for cigarettes and the value of what prisoners acquire. Although the RRP incorporates a tax, the price of cigarettes is set with reference to the RRP.[54] As the test for determining what is a tax is not intended to be exhaustive, a charge need not demonstrate all of the characteristics of a tax to be considered a tax. On the other hand, even if all the positive features of a tax are present, a charge may still not constitute a tax. Accordingly, as her Honour determined that because the levy is a payment for goods acquired for value, it does not constitute a tax.[55]

50 The plaintiff contends that the proposed proceeding:

(a) has substance and is not an abuse of process;

(b) is not doomed to fail;

(c) raises important questions of law in relation to the sale of cigarettes and tobacco to prisoners and prisoners' access to smoking cessation (QUIT) programs and to nicotine replacement patches; and

(d) concerns significant action taken by the proposed defendant.[56]

51 The plaintiff submits that the funds from the tobacco levy have not been directed towards smoking cessation programs. The plaintiff seeks a mandatory injunction ordering the proposed defendant to repay the amounts paid by the plaintiff pursuant to the levy since 19 June 2007, which he alleges were used for purchases or payments unconnected with smoking cessation programs. The plaintiff submits that the funds raised under the levy were only to be used for stated purposes and that it is not a general consolidated revenue fund.[57]

52 The plaintiff contends that the sale of cigarettes and tobacco to prisoners at the prison, at prices above the 1 February 2013 Federal excise increase, amounted to unjust enrichment on the part of the proposed defendant. As a result, the overpayments in question should be remitted to the prisoners who paid them.[58]

53 The plaintiff argues that the right to restitution goes beyond any statutory provision. He stated that in Mason v New South Wales[59] the High Court held that in colore officii cases where an officer who is not entitled to demand payment or who charges too much for the performance of his duty is unjustly enriched, the payer may obtain restitution of the overpayment.

54 It is also submitted by the plaintiff that the proposed defendant failed to provide relevant records and accounts, to the effect that there is no evidence where the money has been spent.[60] The proposed defendant submits that it has no obligation to produce evidence as it is appearing in the capacity of amicus.[61] In any case, McMillan J considered in Knight v Secretary that such evidence was not relevant to the issues in the case, which were whether the 1993 and 2004 decisions were authorised, and whether the levy could be characterised as a tax.[62] Further, as the current matter is an application and not a trial, there is a need to ensure that materials produced to the Court are relevant and that the Court's time is used appropriately.[63] I accept the proposed defendant's submissions on this point and do not consider that in this application there is any need for evidence of the kind of sought to be produced by the plaintiff.

55 The plaintiff seeks the following injunctive relief:

The plaintiff seeks from the Court a mandatory injunction ordering the defendant to repay the amounts paid by the plaintiff pursuant to the Port Phillip Prison Tobacco Levy since 19 June 2007, which were used for purchases or payments unconnected with smoking cessation programmes/or such other order as the court thinks fit.[64]

56 The proposed defendant submits that the plaintiff has failed to specify a legal or equitable right to justify the grant of a mandatory injunction. As such, the claim is foredoomed to fail.[65]

57 In addition, provisions of the Corrections Act enable the governor to act in a manner with the purpose of enhancing prisoner welfare, and any auditing process to determine whether the funds were used for cessation programs is misconceived.[66] The proposed defendant submits that as the decision was within power, there is no right conferred on the plaintiff.

58 I consider that the difficulty with the plaintiff's prayer for injunctive relief is that he seeks relief for which there is no statutory basis in any Act, which he suggests the proposed defendant has breached. As a mandatory injunction can only be granted to protect a legal or equitable right, and the plaintiff has failed to identify any such right, I am satisfied that this aspect of his application is foredoomed to fail and does not have any reasonable grounds.

59 The plaintiff seeks a declaration from the Court that:

... the decision taken by the defendant to increase the price of cigarettes and tobacco sold to prisoners at Port Phillip Prison beyond the amount of the 1 February 2013 Federal excise increase is unjust enrichment.[67]

60 The proposed defendant states that the evidence does not show that there was any decision after 2006 to increase the price of tobacco products in prisons beyond the 1 February 2013 increase. Instead, there was a decision in 2006 to charge the RRP for tobacco products in prison, which has since been implemented.[68]

61 The proposed defendant submits that the plaintiff's application seeks to re-litigate matters already determined against him by McMillan J in Knight v Secretary.[69] That is because the question of whether there has been any unjust enrichment will involve the issue of whether consideration has been provided for moneys paid. This follows the principle that 'a payment cannot constitute unjust enrichment giving rise to restitution if consideration (such as goods or services) is provided for it'.[70] McMillan J found in that case that the payment for tobacco products was 'payment for goods acquired for value' and therefore that consideration had been provided.[71]

62 The pricing of tobacco arising from decisions in 1993, 2004 and 2006 have also been the subject of litigation in Knight v State of Victoria.[72] In that case, Mortimer J held that there was a discernable relationship between the price paid for cigarettes and value of what was acquired.[73] Her Honour stated that 'it may be different if prisoners were being charged a price far in excess of RRP'.[74] The proposed defendant contends that this is not the case.

63 The proposed defendant submits that tobacco products have been sold at PPP and in public prisons at the RRP since 2006, and have continued to be sold at RRP from 2006 to after February 2013.[75] The proposed defendant submits that tobacco prices after February 2013, when the plaintiff states there was a 'Federal excise increase' are no different to the prices considered by McMillan and Mortimer J. As noted by the proposed defendant, 'indeed that increase had occurred before her Honour's decision in Knight v State of Victoria'.[76]

64 Consequently, Mortimer J held that even if she had not considered the case on its merits, the doctrine of issue estoppel applied to bar the proceedings against the plaintiff.[77] Her Honour stated as follows:

... I would have found that the applicant was estopped from impugning the 2004 decision, that matter having been conclusively determined against him by McMillan J. He had the opportunity to appeal that decision, which he elected not to do. The applicant appeared to accept that the principles of issue estoppel as set out in Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 at [21] were applicable. He also did not contest that the State of Victoria and the Commissioner of Corrections Victoria could claim the protection of that doctrine as privies in interest of the Secretary to the Department of Justice, in relation to the issues decided by McMillan J ...[78]

65 Likewise in this case, the proposed defendant argues that it is a privy of the Commissioner for Corrections (the third respondent in Knight v State of Victoria). As Governor of PPP, an office under the Corrections Act, the proposed defendant made the decision pursuant to a directive of the Commissioner for Corrections and s 21 Corrections Act. Section 21 was also relied upon in Knight v Secretary[79] and Knight v State of Victoria. Mortimer J found in the latter case that it was the 2006 decision that was implemented in the pricing of products at RRP in PPP.[80] Therefore, the legal basis for the decision as to pricing was the same in each case, as were the factual circumstances and the implementation of the decision.[81]

66 The proposed defendant submits that the proposed proceeding is an abuse of process on two grounds:

(1) It would seek to re-litigate issues recently determined by the Court, in proceedings brought by the plaintiff.

(2) It is foredoomed to fail as the Court has determined that provisions of the Corrections Act empower the decisions taken.

The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.

...

Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate a new case which has already been disposed of by earlier proceedings.

...

The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police as 'the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which ... otherwise bring the administration of justice into disrepute among right-thinking people' (citations omitted).[82]

68 The proposed defendant argues that the plaintiff seeks to challenge the decision of the then Governor of PPP to charge the RRP for tobacco products on the same ground he relied upon in Knight v Secretary[83] to challenge the Commissioner's 2004 decision in relation to tobacco pricing.[84]

69 In that case, McMillan J found that the decision was within the powers outlined in ss 20 and 21 of the Corrections Act. Her Honour stated that:

In my view, this indicates that the 2004 decision to raise the levy was a decision in relation to welfare and was empowered by ss 20 and 21 of the Act. The list of key tasks as set out in the Commissioner's Requirement, when read together, indicate that the purpose behind the decision to raise the price of cigarettes was to fund and to explore more alternatives for cessation and health promotion programs and was to decrease the amount of smoking in prisons. While it is not expressly stated in the Commissioner's Requirement that the increase in price as to act as a deterrent to smoking, I am of the opinion that the evidence establishes that this was one of the purposes for increasing the levy.

For the above reasons, I find that the 2004 decision was a decision made with respect to welfare and management and is a decision that is reasonably adapted to that end. Therefore, the 2004 decision falls within the scope of ss 20 and 21.[85]

70 The proposed defendant submits that the 2006 decision in relation to tobacco pricing was intended to be consistent with the 2004 Commissioner's Requirement, and was consistent with prisoner welfare, as it was considered that higher pricing may encourage some prisoners to stop smoking.

The fact that some different facts may be involved (in addition to many of the same facts) does not affect this conclusion, as the proposed grounds of review are relevantly identical and the legal issues involved in characterising the decisions are the same.[86]

72 In summary, the proposed defendant states that the proceeding is nevertheless foredoomed to fail. Reference was made to the authorities, including Knight v Secretary, which have established that a decision of this nature, taken for the purposes established by the evidence, is authorised by ss 20 and 21 of the Corrections Act. There is insufficient evidence that the levy has been used for any other purpose than funding prisoner welfare purposes including smoking cessation programs.[87]

73 I accept the proposed defendant's submission that to the extent that the 2006 decision to increase tobacco pricing to RRP implemented the policy outlined in the 2004 Commissioner's Requirement, the case of Knight v Secretary has already determined that it falls within the scope of ss 20 and 21 of the Corrections Act, and was therefore authorised.[88] In any case, the decision was directed towards the purposes of prisoner welfare and prison management, and as McMillan J determined, falls within the scope of ss 20 and 21 of the Corrections Act. Further, I consider that McMillan J's determination in Knight v Secretary that the levy was a payment for goods acquired for value and not a tax, was conclusive and does not require further examination.[89]

74 I consider that to allow the plaintiff's application would risk re-litigating matters already determined by McMillan J in Knight v Secretary[90] and that to do so would risk bringing the administration of justice into disrepute.[91] As such, I am not satisfied that the proposed application would not amount to an abuse of process in relation to this point. In any case, I am not satisfied that the proceeding is not doomed to fail, given the determination in Knight v Secretary[92] that a decision of this nature, taken for the purposes established by the evidence, is authorised by ss 20 and 21 of the Corrections Act. As such, the plaintiff has failed to satisfy me that his prayer for declaratory relief has any reasonable grounds.

75 The plaintiff 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 VPA. The plaintiff's application for leave is dismissed.

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

[2] Amended originating motion filed 2 May 2014 [2].

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

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

[6] Proposed defendant's supplementary submissions [7].

[7] VPA s 92.

[8] Ibid s 93.

[10] [2014] VSC 36 [10]-[12], [64].

[11] [2015] VSC 105.

[12] Knight v Money [2015] VSC 105 at [14].

[13] NSW Aboriginal Land Council v Minister (1988) 14 NSWLR 685, 696.

[14] Proposed defendant's supplementary submissions [14]-[18] referring to Hicks v Aboriginal Legal Services of Western Australia (Inc) [2001] FCA 483; (2001) 108 FCR 589, 599-602; Kentlee Pty Ltd v Prince Consort Pty Ltd 1 Qd R 162.

[15] VPA Parts 12-13; Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430, 452.

[16] [2001] FCA 483; (2001) 108 FCR 589, 589, 590.

[17] [1961] AC 901, 922; [2001] FCA 483; (2001) 108 FCR 589, 599.

[18] (1988) 14 NSWLR 685, 696.

[20] Proposed defendant's supplementary submissions [15]-[20].

[21] [2015] VSC 105 [12].

[28] Victoria, Parliamentary Debates, Legislative Assembly, 19 February 2014, 371 (Robert Clark).

[29] Victoria, Parliamentary Debates, Legislative Council, 12 June 2014, 1956 (D.R.J. O'Brien).

[30] Vexatious Proceedings Act 2014 s 56(1)(4), (5).

[31] [2015] VSC 105 [12].

[33] Proposed defendant's submissions [19]; Affidavit of Ian Pugh Thomas sworn 7 June 2013 [7].

[34] Affidavit of Ian Pugh Thomas sworn 7 June 2013 [13].

[35] Affidavit of Ian Pugh Thomas sworn 7 June 2013 [11]; Affidavit of Julian Knight affirmed 26 March 2013 [32].

[36] Knight v Secretary [2012] VSC 613 [77].

[37] Affidavit of Ian Pugh Thomas sworn 7 June 2013 [13].

[38] Affidavit of Ian Pugh Thomas sworn 7 June 2013, ex IPT-3.

[39] Commissioner's Requirement 2/2006; Affidavit of Ian Pugh Thomas sworn 7 June 2013 [11], ex IPT-1.

[40] Affidavit of Ian Pugh Thomas sworn 7 June 2013, ex IPT-1.

[42] Affidavit of Ian Pugh Thomas sworn 7 June 2013 [12], ex IPT-2.

[45] Ibid [9]; Affidavit of Julian Knight affirmed 26 March 2013.

[46] Affidavit of Ian Pugh Thomas sworn 7 June 2013 [21]; Proposed defendant's submissions dated 14 June 2013 [23].

[47] Affidavit of Julian Knight affirmed 26 March 2013 [12].

[49] [2012] VSC 613.

[51] Affidavit of Julian Knight affirmed 26 March 2013 [36]; Proposed defendant's submissions dated 14 June 2013 [3].

[52] [2012] VSC 613 [78].

[55] Air Caledonie International v Commonwealth (1988) 165 CLR 462.

[56] Amended originating motion filed 2 May 2014 [1].

[57] Plaintiff's outline of submissions dated 13 May 2015 [11].

[58] Ibid [2]-[5]; Amended originating motion filed 2 May 2014 [2]-[3].

[59] [1959] HCA 5; (1959) 102 CLR 108, 140.

[60] Affidavit of Julian Knight affirmed 26 March 2013 [16].

[62] [2012] VSC 613 [28].

[64] Amended originating motion filed 2 May 2014 [2].

[65] Proposed defendant's submissions dated 14 June 2013 [35]-[36]; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199.

[67] Amended originating motion filed 2 May 2014 [3].

[68] Affidavit of Ian Pugh Thomas sworn 7 June 2013 [13]-[14].

[69] [2012] VSC 613.

[70] David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353, 379, 383.

[71] [2012] VSC 618 [114]-[115].

[72] (2014) 221 FCR 561.

[75] Affidavit of Ian Pugh Thomas sworn 7 June 2013 [14].

[76] Ibid; Proposed defendant's supplementary submissions dated 24 May 2015 [25].

[77] (2014) 221 FCR 561 [100]-[102].

[78] (2014) 221 FCR 561 [101].

[79] [2012] VSC 613.

[80] (2014) 221 FCR 561 [35]-[36]; [41]-[42].

[81] Affidavit of Ian Pugh Thomas sworn 7 June 2013 [10]-[11].

[82] Walter v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 393.

[83] [2012] VSC 613.

[84] Ibid [18]; Proposed defendant's submissions [25].

[85] Knight v Secretary [2012] VSC 613 [78]-[79].

[86] Proposed defendant's submissions [31].

[87] Affidavit of Ian Pugh Thomas sworn 7 June 2013 [15]-[18].

[88] [2012] VSC 613 [77]-[79].

[91] Walter v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 393.

[92] [2012] VSC 613.