Plaintiff v Defendant

(ii) an order in the nature of certiorari quashing the decision of the defendant not to approve the sale and use of e-cigarettes in Victorian prisons, on the ground that she failed to take into account a relevant consideration, namely the risk of a major prison riot occurring as a result of the imposition of a total smoking ban.

2 Mr Knight was declared a vexatious litigant on 19 October 2004 pursuant to s 21 of the Supreme Court Act 1986.[1] On 16 October 2014, T Forrest J varied that order so that Mr Knight would remain a vexatious litigant 'until the final determination of the [Attorney-General for the State of Victoria]... application [to remove the limiting clause of the operative period of 10 years] ... or earlier order.'[2] Section 21 of the Supreme Court Act 1986 was repealed by s 102 of the Vexatious Proceedings Act 2014 ('the Act') on 31 October 2014. Under the Act Mr Knight became subject to a general litigation restraint order on 31 October 2014.[3]

3 As a person subject to a general litigation restraint order, Mr Knight requires the leave of the Court in order to commence a proceeding. Further, pursuant to s 56(1)(c) and (d) of the Act, Mr Knight must disclose:

(c) details of each interlocutory application which he has made or proceeding which he has 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;

(d) an explanation as to how the application for leave to proceed is materially different to each application referred to in paragraph (a), (b) or (c) (if any) ...

4 Mr Knight's application is supported by an affidavit which he affirmed on 17 August 2015. Paragraphs 5 and 6 of that affidavit are as follows:

On 5 March 2015, leave was refused by McMillan J in relation to a challenge to the imposition of a smoking ban in Victorian prisons (see Knight v Minister for Corrections [2015] VSC 56).

On 20 May 2015, leave was refused by Zammit J in relation to a challenge to the decision not to approve the sale and use of e-cigarettes in Victorian prisons (see Knight v Minister for Corrections (No 2) [2015] VSC 213).

5 Pursuant to s 58 of the Act, the Court may dismiss an application for leave to proceed if it is not satisfied that the application is materially different to previous applications which have been made by the person subject to the general litigation restraint order. Both the judgments of McMillan J and Zammit J that are referred to in Mr Knight's affidavit related to interlocutory applications which were dismissed on the basis that the applications were without merit. Accordingly, by virtue of s 56(1)(d) of the Act, Mr Knight was subject to an onus to provide an explanation as to how his current application is materially different to the interlocutory applications which were the subject of the judgments of McMillan and Zammit JJ. Mr Knight's affidavit in support of his application does not address this issue at all.

6 The subject matter of Mr Knight's current application is identical to that which was the subject of the judgments of McMillan and Zammit JJ (the imposition of a total smoking ban in Victorian prisons and the decision not to approve the sale and use of e-cigarettes in Victorian prisons). Section 56(1)(d) of the Act places the onus squarely upon Mr Knight to provide an explanation as to how his current application for leave to proceed is materially different to the applications which were the subject of the judgments of McMillan and Zammit JJ. He has failed to discharge this onus. In these circumstances, the Court is not satisfied that the current application is materially different from the previous applications the subject of the judgments of McMillan and Zammit JJ.

7 Pursuant to s 58 of the Act, Mr Knight's application for leave to proceed is dismissed.

[1] Attorney-General (Victoria) v Knight [2004] VSC 407.

[2] Attorney-General (Victoria) v Knight [2014] VSC 549.

[3] Vexatious Proceedings Act 2014 (Vic) s 91.