Plaintiff v Defendant

Supreme Court of Victoria|2016-08-30|Before: J FORREST J

PRACTICE AND PROCEDURE - Vexatious litigant - Whether to extend orders - General litigation restraint order - Interests of justice - Proceedings instituted without reasonable grounds - Proceedings foredoomed to fail - Orders extended indefinitely - Supreme Court Act 1986 s 21 - Vexatious Proceedings Act 2014 s 3, 29, 30, 33, 91.

2 Mr Knight was declared to be a vexatious litigant on 19 October 2004 pursuant to s 21 of the Supreme Court Act 1986 (SCA). The orders of this Court made on 19 October 2004 were for a period of ten years. They were extended by this Court on 16 October 2014 until the final determination of this application.

3 The question to be resolved is whether there should be an extension of the orders pursuant to the Vexatious Proceedings Act 2014 (Vic) (the Act) so that Mr Knight remains a vexatious litigant and, if so, on what terms.

4 Mr Knight has, since he was declared a vexatious litigant, persistently brought proceedings that were either hopeless or had no reasonable grounds or prospects of success. For the reasons below, I am of the view that the order of Smith J should be extended indefinitely.

Orders declaring Mr Knight to be a vexatious litigant

5 On 19 October 2004, Smith J made orders declaring Mr Knight to be a vexatious litigant for ten years, pursuant to s 21(2) of the SCA:

1. The Defendant Julian Knight be declared a vexatious litigant.

The Defendant Julian Knight must not without leave of the Court commence, within the period of 10 years from this date any legal proceedings (whether civil or criminal) in the Court, an inferior Court or any tribunal.

6 On 16 October 2014, T Forrest J made the following orders:

Paragraph 2 of the Judgment and Order herein given and made on 19 October 2004 is varied by deleting the words,

'within the period of 10 years from this date'

'until the final determination of the Plaintiff's application brought in this proceeding by summons filed 5 September 2014 or earlier order.'

7 In October 2014, the Act came into operation, repealing s 21 of the SCA. By s 91 of the Act, an order in force declaring a person to be vexatious under s 21(2) of the SCA is taken to be a general litigation restraint order made under s 29 of the Act.

8 Section 3 of the Act defines 'vexatious proceeding' as:

"vexatious proceeding" includes the following -

(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.

Supreme Court may make general litigation restraint order

(1) The Supreme Court constituted by a Judge of the Court may make a general litigation restraint order against a person if the Court is satisfied that the person has persistently and without reasonable grounds commenced or conducted vexatious proceedings.

(2) In determining whether it is satisfied of the matters specified in subsection (1), the Supreme Court may take into account any matter it considers relevant, including but not limited to any of the following -

(a) any proceeding commenced or conducted by the person, or an entity controlled by the person, in any Australian court or tribunal;

(b) the existence of any order made by an Australian court or tribunal against the person, or an entity controlled by the person, including -

(i) a litigation restraint order; or

(ii) an acting in concert order; or

(iii) a vexatious proceeding order;

(c) any other matter relating to the way in which the person conducts or has conducted litigation.

(3) The Supreme Court may take into account a matter referred to in subsection (2) that relates to a proceeding commenced or conducted before, on or after the commencement of this section.

(4) The Supreme Court may make a general litigation restraint order -

(a) on its own motion; or

(b) on an application under section 28.

General litigation restraint order

(1) A general litigation restraint order made against a person may direct that the person must not do either or both of the following for the period specified by the Supreme Court -

(a) continue any proceeding in a Victorian court or tribunal without leave of -

(i) the Supreme Court; or

(ii) the Victorian court or tribunal in which the proceeding is being heard;

(b) commence any proceeding in a Victorian court or tribunal without leave of -

(i) the Supreme Court; or

(ii) the Victorian court or tribunal in which the proceeding is to be commenced.

(2) A general litigation restraint order may include any other direction or order that the Supreme Court considers appropriate.

(3) Without limiting subsection (2), the Supreme Court may direct that the person who is subject to the general litigation restraint order may commence or continue a specified proceeding in a Victorian court or tribunal.

11 Section 33 provides for an extension of a general litigation restraint order, as follows:

Duration of general litigation restraint order

(1) A general litigation restraint order remains in force for the period specified in the order.

(2) The Supreme Court may specify that an order remains in force indefinitely.

(3) The Supreme Court may extend the duration of a general litigation restraint order referred to in subsection (1) if it considers it is in the interests of justice to do so.

12 Finally, s 91 deals with the position of persons the subject of order under the former s 21 of the SCA:

Supreme Court Act 1986 - orders declaring person to be vexatious litigant

(1) An order declaring a person to be a vexatious litigant made under section 21(2) of the Supreme Court Act 1986 as in force immediately before the repeal of section 21 of that Act is taken on and from that repeal to be a general litigation restraint order made by the Supreme Court under section 29 of this Act.

(2) The terms of a general litigation restraint order referred to in subsection (1) are the same as the terms of the order made under section 21(2) of the Supreme Court Act 1986 as in force immediately before its repeal, unless those terms are otherwise varied or revoked under this Act.

13 The Attorney General relied upon ten affidavits in support. These are detailed as follows:

(a) Affidavits of Stephen Joseph Lee sworn 5 September 2014, 16 September 2014, 24 September 2014, 19 December 2014, 4 August 2015, 6 August 2015, and 15 October 2015;

(b) Affidavits of Leah Bloc sworn 7 March 2016 and 19 April 2016; and

(c) Affidavits of Linsey Walker sworn 8 July 2016.

These affidavits contain details of the many applications made by Mr Knight since 2004 and are conveniently summarised in tables prepared by the Attorney-General, which are set out as annexures to this judgment.

14 Mr Knight relied on an affidavit sworn by him on 31 May 2016.

15 Both parties provided written outlines of submissions, which were supplemented orally at the hearing.

16 As I said earlier, the effect of s 91 of the Act is that Mr Knight, having been declared a vexatious litigant pursuant to Smith J's 2004 orders (and as varied by T Forrest J's 2015 orders), is now subject to a general litigation restraint order.

17 At the hearing, I permitted Mr Knight to call Professor Paul Mullen, a forensic psychiatrist, who gave evidence and was cross-examined by senior counsel for the Attorney-General.

18 Professor Mullen (who had seen Mr Knight on 8 August 2011 and 1 March 2012) prepared a forensic psychiatric report concerning Mr Knight (exhibited to Mr Knight's affidavit), dated 16 March 2012 and addressed to Corrections Victoria (the Department of Justice).

19 Professor Mullen has written extensively on the psychiatric aspects which lead people to become persistent and, ultimately, self-destructive complainants. He was at pains to point out that his expertise was in relation to querulous complainants, not all of whom will fit the legal construct of a vexatious litigant.

(a) He does not suffer from a 'serious psychiatric disorder' but has a rigid obsessional personality trait'.[1]

(b) His actions in bringing court cases cannot be explained by any mental abnormality.[2]

(c) He does not fit into the category of a querulent litigant[3] - which is:

a person who relentlessly pursues litigation and does so in circumstances where there is no proper basis to do so because of a psychiatric disorder or behavioural psychiatric matter such as a querulous condition, or may do so because of a personality trade that may not be classified as a psychiatric disorder.

(d) He will continue to complain about his conditions of incarceration (whether justified or not) as long as he is incarcerated.[4]

(e) His obsessional traits extend to stubbornness and a tendency to lose a sense of proportion when pursuing a particular goal.[5]

(f) Mr Knight did tell Professor Mullen that some of the cases he took on were petulant and a way of causing trouble - although, on reflection, the Professor thought that what Mr Knight said was that the trouble he caused gave him some satisfaction.[6]

(g) His personality is such that it makes it more likely that he will persist in any task he takes to on a greater extent than the average person.[7]

(h) Given his past behaviour, it was unlikely that Mr Knight would cease or decrease his litigious behaviour.[8]

21 In the judgment of Smith J of 19 October 2004,[9] his Honour concluded that Mr Knight was a vexatious litigant within the meaning of s 21 of the SCA as he persistently and habitually instituted hopeless proceedings. This was notwithstanding the fact that Mr Knight was a prisoner, and thus should be denied access to the courts only in the most extreme of circumstances.

22 As a result of those orders, Mr Knight was required to seek leave to institute proceedings in any court under s 18 of the SCA and, subsequent to October 2014, under Part 5 of the Act.

23 Since October 2004, Mr Knight has made numerous applications to the Court seeking leave to issue proceedings against a variety of defendants. More often than not these applications have been connected with the conditions of his incarceration and complaints about prison administration. The five tables (now annexed to this judgment), provided by the Attorney-General, precis the situation.[10]

24 Table 1 sets out the 15 occasions (14 in the trial division and one application for leave to appeal) from October 2006 until March 2013 in which this Court has held that the proceedings, if instituted, would constitute an abuse of process. The words 'hopeless' or 'foredoomed to fail' appear in many of these dismissals of Mr Knight's applications.

25 Table 2 is marginally different to table 1, but makes the same point. It details eight instances from October 2012 until October 2015 where a court has held that Mr Knight had not discharged the burden of proving that the proposed proceeding, if instituted, would not be an abuse of process. Of these, six were decisions of the trial division, and two of the Court of Appeal.

26 Table 3 shows three instances, between July 2013 and August 2015, where Mr Knight failed to comply with mandatory requirements of the Act.

27 Table 4 sets out the five times Mr Knight has filed applications in relation to accessing an in-cell computer in prison. All applications were dismissed.

28 Table 5 notes the ten occasions upon which Mr Knight has been granted leave to commence a proceeding. Of these, Mr Knight was ultimately successful on three occasions (two of which were by consent, and in the third he was successful in part), whilst three were dismissed and the balance not prosecuted.

29 In summary, since 2004, Mr Knight has made 30 applications for leave to commence proceedings under the SCA and the Act which have been refused by judges of this Court. He has enjoyed mixed success in the proceedings in which leave was granted - three were successful, three were unsuccessful.

30 Further, more than 20 judicial officers have considered Mr Knight's applications or (where leave was granted) proceedings - a number on multiple occasions.

31 On 31 October 2014 the Act came into operation and, by s 91, the orders of Smith J were taken to operate as a general litigation restraint order made under s 29. The position, at the moment, is that the order of Smith J - as extended by T Forrest J - remains in force. Section 33 is engaged and gives a discretion to the Court to extend, indefinitely if it wishes, a general litigation restraint order.

32 The questions I must resolve under s 33(2) and (3) are:

(a) whether it is in the interests of justice to extend the duration of the general litigation restraint order;

(b) if an order is to be made, then for what duration should it apply; and

(c) if an order is to be made, what should the form of the order be.

Is it in the interests of justice to extend Mr Knight's general litigation restraint order?

33 I think it clear that, in making a determination under s 33, a court applies the considerations set out in s 29(1) of the Act in conjunction with the definition of vexatious proceedings set out in s 3. The Attorney-General accepted this proposition, arguing that Mr Knight was a vexatious litigant and has 'persistently and without reasonable grounds commenced or conducted proceedings' - adopting the wording of the s 3 definition.

34 The starting point is that, prior to 2004, Mr Knight's behaviour was such that, notwithstanding his disadvantaged position as a prisoner, Smith J declared him to be a vexatious litigant on the basis of his litigious conduct up until that point of time. His Honour said:

... a clear picture emerges of a person who is habitually and persistently and without reasonable cause instituting hopeless, and therefore, vexatious proceedings. There is a high probability that he will continue to do so. It is true that a few proceedings had merit, but even in those cases he showed a tendency to pursue the relief sought through the appeal process even though he must have known he had no prospects of success. His conduct generally reveals a strong tendency to pursue hopeless proceedings. There is no evidence to suggest that this might change. It appears to me that an order should be made declaring him vexatious.[11]

It is of significance that the basis for his Honour's decision was essentially identical to that argued by the Attorney-General in this application: the persistent institution of hopeless cases with no prospect of abatement.

35 The tables comprehensively demonstrate the persistent institution by Mr Knight of applications under the SCA and the Act over the past 10 years - a continuation of the conduct that led Smith J to make the original order.

36 Mr Knight has initiated over 40 applications for leave to proceed under the SCA or the Act since the orders of Smith J in 2004.

37 It is not to the point, as Professor Mullen explained, that Mr Knight is not a querulous litigant. The fact is that he is a persistent and undeterred litigant who will continue to litigate any cause regardless of its merits.

38 Indeed, Professor Mullen said that he has counselled Mr Knight to avoid persistent litigation, but to no avail:

I've said it on a number of occasions, I suspect in this report, is that his pursuit of repeated litigation which brought him into the public eye is inevitably very unwise.[12]

39 The expressions 'foredoomed to fail' and 'hopeless' are characteristic of many of the judgments concerning Mr Knight's applications for leave to initiate proceedings over the past ten years.

40 For instance, on 12 March 2013, Macaulay J delivered judgment in Knight v Adult Parole Board.[13] In that case, Mr Knight sought to issue judicial review proceedings against the Adult Parole Board for its refusal to provide him with a tentative parole date. Macaulay J held that the proceedings were foredoomed to fail, refused Mr Knight leave to issue, and that judicial review was not available because what Mr Knight sought to review was not a decision affecting legal rights.

41 Then, in Knight v Money,[14] Cavanough J dismissed Mr Knight's applications to challenge aspects of his sentence management:

On any view, the burden of showing that a proposed proceeding is not foredoomed to fail rests with Mr Knight. Even without taking into account adversely to Mr Knight any of the abovementioned intervening events, I am not satisfied that either proceeding would not be foredoomed to fail. That is to say, I am not satisfied that either proceeding would not be an abuse of process. Accordingly, leave to proceed must be refused in both cases. For good measure, I add that, even making the same assumptions and taking the same approach, I am of the positive view that each proceeding would be foredoomed to fail and would therefore be an abuse of process.[15]

42 Most recently, in February of this year, Digby J in Knight v Corrections Commissioner & Ors[16] heard an application by Mr Knight to bring a proceeding relating, inter alia, to his solitary confinement. His Honour concluded:

In my view the current application is substantially the same as the applicant's application of 14 August 2015 before McDonald J of this Court. I am not satisfied for this reason, nor am I satisfied on the basis of any other material put before me by the applicant, that the current application is materially different to the previous application determined on 9 October 2015 and I consider that the current application should therefore be dismissed pursuant to s 58 of the Act.

43 These are but three examples which emerge out of a raft of similar statements made by judges of this Court.

44 Mr Knight emphasised that, in considering any extension of the order of Smith J, the Court must take into account the fact that he has enjoyed success on occasions, measured by:

(a) a number of grants of leave to issue proceedings under the SCA or the Act;

(b) some successful outcomes in the trial of a proceeding in this Court; and

(c) some favourable results, in practical terms, which did not require him to continue his application or proceeding.

45 There is only marginal force in this submission. In Potier v Attorney-General in and for the State of New South Wales,[17] Basten JA said (emphasis added):

The parties exchanged submissions on whether the proportion of proceedings instituted by a person being found to be vexatious was relevant to whether the threshold condition is satisfied. I do not think that it is. The statute requires the Court to be satisfied that a person has instituted or conducted vexatious proceedings frequently; whether the proportion of all proceedings instituted or conducted by the person which are vexatious is high or low does not bear upon that question. By the same token, suppose the question is whether a traveller will frequently encounter rabid dogs in a particular area. The answer does not turn on how many non-rabid dogs the traveller is likely to encounter in the area.

That said, the proportion of proceedings which are vexatious is highly relevant to the exercise of discretion to make an order, if the threshold condition is satisfied. For an order may bear upon all proceedings instituted or conducted by a person, and it will be essential for the Court to bear in mind its operation on existing and likely future proceedings, particularly those which are not vexatious. As will be seen below, this is crucial to the re-exercise of discretion in respect of Mr Potier.

46 So, it follows that the existence of a number of successful applications for leave or judgments does not paint the whole picture. Each application places a strain on the administration of the justice system. Whether under the SCA or the Act, Mr Knight's applications, frequently baseless, take up scarce judicial resources and mean that other non-vexatious litigants are delayed in accessing justice.

47 The drain of multiple hopeless cases on the resources of the Court was recognised by the Law Reform Committee Inquiry into Vexatious Litigants (whose recommendations led to the legislative change resulting in the Act),[18] where the following was said (emphasis added):

Public funding for courts and tribunals is not unlimited. Victoria's courts and tribunals are increasingly expected to ensure they use their available resources to administer justice as efficiently and effectively as possible. These concepts are becoming part of the values of the justice system itself. The Government's Justice Statements list effectiveness as a 'core value' of the justice system along with equality before the law, fairness and accessibility.

The VLRC (Victorian Law Reform Commission) listed proportionality - the idea that the costs incurred by the parties and by the public in the provision of court resources should be proportionate to the matter in dispute - as another desirable goal of the civil justice system. Vexatious litigants challenge these values because they consume court and tribunal resources for proceedings that may be unmeritorious and, in doing so, reduce the resources available for other litigants. In a 2006 speech, the Master of the Rolls in the United Kingdom (UK) argued that:

If courts are required to utilise their scarce financial and temporal resources on vexatious claims and applications their ability to properly deal with claims and applications that have genuine merit will be diminished. Such claims may not be heard due to lack of time or resources. If heard, the hearing may be delayed for a lengthy period of time. Equally, if heard, a judgment may then be delayed because the judge has to spend precious time dealing with a vexatious litigant, or with matters that have been referred to him to hear as a consequence of vexatious litigation generally.

This analysis suggests that, by reducing the efficiency of the courts, vexatious litigants affect access to justice for the community as a whole.

48 Moreover, a number of the successful applications have involved relatively inconsequential grievances rather than a well-founded legal claim, worthy of agitation in this Court.

49 As Potier demonstrates, the Act does not require an assessment of proportionality. Rather, it requires a consideration of whether there have been frequent vexatious applications. This, in my opinion, is clearly established.

50 I do, however, accept, as stated in Potier, that the degree of success may be a relevant consideration in determining ultimately whether to exercise the residual discretion to make or extend a vexatious litigant order.

51 The prospect of any reduction in Mr Knight's persistent litigious behaviour is nil. In 2004, Smith J arrived at the same conclusion - and his Honour has been proven correct. Notwithstanding that Mr Knight has been declared a vexatious litigant, he has continued to make application after application after application. Many have been recognised by judges of this Court as being hopeless or 'foredoomed to fail'. Others are merely a repetition of a previous application.

52 Smith J had only a relatively short history to guide him in reaching his conclusion as to Mr Knight's future conduct. Here, the case is stronger. The litigious story is now at least 15 years old and unabated. There is also Professor Mullen's opinion that, in effect, there is no prospect in the future of any reduction in attempts by Mr Knight to litigate any issue on which he takes umbrage.

53 The end result is that it is patently in the interests of justice to extend the order, declaring Mr Knight to be a vexatious litigant.

54 I am not deterred from this course by the fact that there have been some successful applications; even fewer court victories. The unnecessary strains placed on the administration of justice by repeated hopeless applications is an overwhelming factor in concluding that the general litigant restraint order should be extended.

55 Pursuant to s 33 of the Act, it is open to the Court to order that the general litigation restraint order will apply either for a specific time period, indefinitely, or until further order of the Court.

56 Given the aims of the Act, specifically the pursuit of an efficient and effective administration of justice (which I have outlined above), and my conclusion that Mr Knight's litigious conduct will persist indefinitely, I consider that it is in the interests of justice that the order should be of an indefinite duration.

57 To make it clear, such an order does not prevent Mr Knight from seeking leave to commence a proceeding pursuant to Part 8 of the Act.

58 The Act, by s 30, unlike its predecessor (the SCA), permits this Court to make an order which enables an application to be brought by a declared vexatious litigant in the jurisdiction in which he or she seeks to issue the putative proceeding.

59 This provision was introduced as a result of the Law Reform Committee's recommendation, which read:

The graduated system recommended by the Committee creates scope to tailor the courts and tribunals that can make orders to the seriousness of the order. The Committee considers the power to make limited orders should be available to all courts and VCAT. The Committee believes the power to make extended orders should also be available to all courts and VCAT but, with the exception of the Supreme Court, should be confined to the head of jurisdiction and should only restrain litigation in the jurisdiction where the order is made.[19]

60 Mr Knight submitted that the Court should consider proportionality in determining the proper place for an application for leave to institute proceedings. He argued that it was disproportionate to require him to seek leave of the Supreme Court to issue relatively minor proceedings in, say, the Magistrates' Court.

61 At the trial, counsel for the Attorney General did not have instructions on this point. Subsequent to the trial, the Court received notification from the Attorney General that it opposed Mr Knight's suggested course, and that any application for leave to issue should be heard by the Supreme Court - not by the court or tribunal in which leave to institute is being sought.

62 I accept Mr Knight's submission. It seems to me to be the common sense approach, as well as consistent with the two core values of the justice system - effectiveness and proportionality - as outlined by the Law Reform Committee Inquiry into Vexatious Litigants (referred to at [47]). It is sensible and cost effective that any future applications be determined by the relevant courts or tribunal in which Mr Knight seeks to litigate.

63 Subject to hearing from the parties, I propose to make the following orders:

The defendant Julian Knight be the subject of a general litigation restraint order.
Mr Knight must not, without leave of the court or tribunal in which the proceeding is to be commenced, commence from this date any legal proceedings, whether civil or criminal, in this Court, an inferior court, or any tribunal.
Orders 1 and 2 are to remain in force indefinitely.
There be no order as to costs.

APPLICATIONS IN WHICH IT WAS HELD THAT THE PROPOSED PROCEEDING, IF INSTITUTED, WOULD BE AN ABUSE OF PROCESS

Judgment reference to finding that proceeding would be an abuse or vexatious

Application for leave to commence proceedings for judicial review of numerous decisions concerning sentence plan, participation in programs and education, and interception of a letter to a victim

Leave refused for all proposed proceedings except proceeding concerning letter to victim

[16] "it would be a waste of the Court's scarce time and resources to allow the proposed application to proceed, and it would also be oppressive and vexatious to compel the authorities to participate in legally and factually complex judicial review proceedings, in relation to those matters".

(Leave granted to issue proceedings re letter to victim: at [40])

Application to amend proposed statement of claim re proceedings relating to letter to victim

(S CI 9420 of 2003 Leave to commence VCAT FOI application granted at [15])

Leave refused in application to amend statement of claim re letter to victim, on the basis that it would be "foredoomed to fail": see [51] - [55]

Application for leave to commence proceeding for injunctive relief / mandamus / declaration concerning refusal of access to in-cell computer

Findings that the matters had no prospect of success and were foredoomed to fail: see [18] - [22]; [27].

Knight v Adult Parole Board and Secretary, Department of Justice (S CI 2011 7010)

Application for leave to commence proceeding for injunction compelling APB to make parole order and mandamus compelling Secretary to grant a rehabilitation & transition permit

Re first claim at [15]: "doomed to failure. Accordingly it would constitute an abuse of process of the Court."

Also (at [17]) the proceedings would be "vexatious in the sense that they would be of no utility at this point in time".

Knight v Adult Parole Board (Supreme Court Proceeding SCI 2012 04155)

Application for leave to commence proceeding for judicial review of decision of Adult Parole Board to refuse request for "tentative date of release on parole"

At [44]-[45]: "the proceeding is foredoomed to fail".

Knight v Wise, Deputy Commissioner, Corrections Victoria (SCI 2012 04160).

Application for leave to commence proceeding for judicial review of proposed decision to refuse access to an in-cell computer

At [48] "... the Proposed Proceeding is foredoomed to fail."

At [59]: "As the Proposed Proceeding is foredoomed to fail, it would constitute an abuse of the process of the Court."

Knight v Selisky (in his capacity as Operations Manager, Port Phillip Prison) (S CI 2012 05966).

Application for leave to commence proceeding for judicial review of decisions made by Operations Manager Port Phillip Prison concerning interception of letters to other prisoners

At [19]: "Mr Knight's proposed proceeding, if instituted, would be foredoomed to fail and therefore a contempt of court".

Knight v Wise, Deputy Commissioner, Corrections Victoria (S CI 2013 00494)

Application for leave to commence proceeding for judicial review of decisions made by Deputy Commissioner Wise to refuse applications by Mr Knight for access to an in-cell computer.

At [28]: "The proposed proceeding is foredoomed to fail and would therefore constitute an abuse of process. The court has no discretion to grant the leave that is sought."

Knight v Governor, Port Phillip Prison (S CI 2013 00233).

Application for leave to issue writ of habeas corpus (seeking release from Charlotte management unit)

At [20]: The action is "an abuse of process, foredoomed to fail".

Application for leave to commence proceeding for a mandatory injunction to compel the defendants, the Commissioner for Corrections and the General Manager of Port Phillip Prison, to release and post letters written by Mr Knight which had been seized_._

At [8]: "The proceedings are foredoomed to fail such that they are an abuse of process".

Application for leave to commence proceedings for judicial review of decisions re sentence management and transfer to Transition Centre

As to various proposed grounds being "hopeless" or "foredoomed to fail", see [120], [197], [202] and [204]

Application for leave to bring a proceeding for judicial review of a decision refusing a request for access to in-cell computer

At [7]: "I am not satisfied that the proposed proceeding would not be an abuse of process. In fact I am convinced that it would be an abuse of process."

Application for leave to commence proceeding for mandatory injunction ordering repayment of amounts paid pursuant to a tobacco levy and for a declaration that increase in price of tobacco products after 1 February 2013 is unjust enrichment

At [58]): Application for mandatory injunction "foredoomed to fail and does not have any reasonable grounds".

In relation to the declaration sought, the Court held (at [74] - [75]) that Mr Knight had not established that there were reasonable grounds for the proposed proceeding or that the proposed proceeding was not vexatious.

Application for leave to appeal refusal by Kyrou J to grant leave to bring proceeding relating to access to in cell computer in Knight v Wise, Deputy Commissioner, Corrections Victoria [2012] VSC 506 (case 6, above)

(Heard together with Knight v Hastings (S APCI 2012 0192) - an application for leave to appeal against costs orders made by Williams J in Knight v Hastings [2012] VSC 423 (Table 5 Case 9B)

[2012] VSCA 315 (Neave JA and Hargrave AJA)

At [58]: "[T]he proposed proceeding would be an abuse of process."

(Leave to appeal against the order as to costs was also refused, the Court holding (at [17]) that Mr Knight failed to meet the lesser threshold of leave to appeal against a costs order, but there was no positive finding in terms that the proposed appeal would be an abuse of process.)

APPLICATIONS IN WHICH IT WAS HELD THAT MR KNIGHT HAD NOT DISCHARGED THE BURDEN OF ESTABLISHING THAT THE PROPOSED PROCEEDING, IF INSTITUTED, WOULD NOT BE AN ABUSE OF PROCESS[20]

Knight v Commissioner, Corrections Victoria (Supreme Court Proceeding SCI 2012 05965).

Application for leave to commence a proceeding seeking an injunction requiring the Commissioner, Corrections Victoria to allow unmonitored and unrecorded access to the telephone number of the Supreme Court Registry.

"Mr Knight has not persuaded me that the proposed proceeding is not foredoomed to fail."

Application for leave to commence a proceeding seeking declarations relating to separation orders into Management Unit

- At [63]-[64]"I am not satisfied ... that the proposed proceeding is not a vexatious proceeding and I am not satisfied that there are reasonable grounds for the proposed proceeding.

- ... I would not have been satisfied that proposed proceeding is not or will not be an abuse of the process of the Court.".

Application for leave to commence a proceeding seeking a declaration that decision by Minister to ban smoking in prisons is ultra vires

At [39]: "I am not satisfied that the proposed proceeding has reasonable grounds ...".

Application for leave to commence a proceeding seeking judicial review to quash a decision not to permit e-cigarettes and an order that the Minister to reconsider his decision not to approve the sale and use of e-cigarettes in Victorian prisons according to law

Circa March 2015 (see judgment at [2] and at footnote 2).

At [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 ...".

Knight v Corrections Commissioner; General Manager, Port Phillip Prison and General Manager, Barwon Prison

Application for leave to commence a proceeding seeking injunctive and declaratory relief in relation to a decision to transfer Mr Knight to a management unit and his conditions of detention

At [91]: "... the applicant has failed to establish that there are reasonable grounds for his proposed proceedings".

At [102]: re challenge to separation: "the applicant has not satisfied me that he has any reasonable grounds for his proposed proceedings and that his application for leave to commence those proceedings should be granted. Nor am I satisfied ... that the applicant's proposed proceedings are not a vexatious proceeding."

At [107] re access to legal materials and computer facilities: "I am ... unpersuaded that the applicant has reasonable grounds for this second limb of his proceedings and additionally I am unpersuaded that this part of his proceedings is not a vexatious proceeding in the circumstances which I have outlined."

Knight v Hastings (Court of Appeal Application S APCI 2012 0192).

Application for leave to appeal costs order of Williams J

Re costs: at [17]. Mr Knight "has not met the requirements for the grant of leave to appeal to a vexatious litigant".

Knight v Wise (Court of Appeal Proceeding S APCI 2013 0139)

Application for leave to appeal decision of Daly As J setting aside a subpoena

Application referred for dismissal (because of futility)

APPLICATIONS PURSUANT TO VEXATIOUS PROCEEDINGS ACT 2014 IN WHICH IT WAS HELD THAT MR KNIGHT HAD NOT COMPLIED WITH MANDATORY REQUIREMENTS OF THE VEXATIOUS PROCEEDINGS ACT

Judgment and relevant paragraph (that burden not discharged)

At [8]: "Since Mr Knight file his application in July 2013, there have been two events which render the relief sought by him to be of no utility."

At [11]: "The differences between the extant proceeding and the foreshadowed proceeding [arising from proposed amendment] are so fundamental as to weigh heavily against Mr Knight being granted leave to amend".

At [12]: "The consequence of the refusal of Mr Knight's application for leave to amend is that the extant application must be dismissed by reason of the non-compliance with the mandatory provisions of the [Vexatious Proceedings] Act..."

Failure to comply with s 56(1)(d) re disclosure of how application differs from previous applications.

At [8]: "Mr Knight's affidavit in support of his application is wholly inadequate for the purpose of discharging the obligation cast upon him by s 56(1)(d) of the Act. In the absence of any material enabling the court to form a view as to whether or not the current application is materially different from previous applications made by Mr Knight, the court is not satisfied that the current application is materially different."

Application for leave to commence a proceeding seeking orders in the nature of certiorari to quash decisions of the defendant to impose a total smoking ban in Victorian prisons and not approving the sale and use of e-cigarettes in Victorian prisons.

At [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 on 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."

INTERLOCUTORY APPLICATIONS FOR ACCESS TO AN IN-CELL COMPUTER

At a glance

Court

Decision date

Before

Source

Judgment (285 paragraphs)

Parties

Legislation Cited (3)