Plaintiff v Defendant

Supreme Court of Victoria|2016-01-27|Before: T FORREST J

PRACTICE AND PROCEDURE - Vexatious litigant - Application for leave to commence proceedings - Applicant a prisoner under sentence - Proposed proceeding a VCAT review of FOI decision - whether proposed proceeding vexatious - whether reasonable grounds for proposed proceeding - Vexatious Proceedings Act 2014 ss 55, 56.

1 By Application dated 14 September 2015 the plaintiff, Mr Knight, seeks leave to commence a proceeding, namely and application for review to the Victorian Civil and Administrative Tribunal (VCAT). Specifically, Mr Knight seeks review by VCAT of a decision made by the Freedom of Information (FOI) Commissioner. The Commissioner's decision upheld the decision of a Department of Justice & Regulation FOI Office to provide Mr Knight access to a redacted copy of the first page only of a report requested pursuant to the (Vic) (FOI Act).

2 The Plaintiff is currently incarcerated at HM Prison Barwon. In October 2013, he completed a 'High Intensity Violence Intervention Program' (VIP) at Port Philip Prison. In December 2013, the Adult Parole Board determined that Mr Knight would not be released on parole at that time. The report which Mr Knight seeks pursuant to the FOI Act is his VIP completion report, which he says was finalised on 23 September 2014. Mr Knight claims that he viewed an unedited copy of that report on 2 March 2015.

3 Mr Knight is subject to a general restraint order under the Vexatious Proceedings Act 2014. He was first declared a vexatious litigant on 19 October 2004 pursuant to s 21 of the Supreme Court Act 1986. I varied that order on 16 October 2014, the effect of which was that Mr Knight was to remain a vexatious litigant 'until the final determination of the [Attorney-General for the State of Victoria's]...application [to remove the limiting clause of the operative period of 10 years]...or earlier order." Section 21 of the Supreme Court 1986 was repealed by s 102 of the Vexatious Proceedings Act 2014 on 31 October 2014. Pursuant to s 91 of the Vexatious Proceedings Act, Mr Knight became subject to a general litigation restraint order on 31 October 2014 on the same terms as the order imposed 19 October 2004 (and as varied on 16 October 2014).

4 Section 56(1) of the Vexatious Proceedings Act 2014 requires a person subject to a litigation restraint order to disclose by affidavit the following when making an application for leave to proceed:

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

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

(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);

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

5 Mr Knight's application is supported by an affidavit affirmed 14 September 2015 which purports to address these requirements and provide an overview of the substance of his application.

6 Mr Knight's 14 September 2015 affidavit lists eight judgments of this Court relating to applications made by him since "16 October 2014". In each of the listed applications, leave to proceed was refused. Mr Knight asserts that:

"The instant application differs from the applications listed in paragraph 4 above in that it is an application to commence a proceeding in the Victorian Civil and Administrative Tribunal (VCAT)."[1]

7 Though Mr Knight's affidavit does not delve into the details of these applications, they are publically available and published from the library of this Court. None of these applications concerned either the VIP or an FOI request. I am satisfied that this application is materially different to each of those eight applications made by Mr Knight since 16 October 2014.

8 Despite this, it is clear that Mr Knight has failed to meet the requirements of s 56, which include disclosure of details of each application for leave to commence or continue proceedings made under s 21 of the Supreme Court Act 1986 [2]. Mr Knight made numerous applications for leave to commence proceedings between 19 October 2004 and 16 October 2014, none of which are detailed in his 14 September 2015 affidavit.

9 Mr Knight's general litigation restraint order requires the leave of this Court in order to commence a proceeding. Pursuant to s 55 of the Act the Court may grant leave only if satisfied that:

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

(b) there are reasonable grounds for the proceeding.

(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;

(d) a proceeding conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.[3]

11 The plaintiff bears the onus of proving the proposed proceeding is not vexatious, and that it has reasonable grounds.[4]

12 On the limited information provided by Mr Knight, I have not been able sensibly come to a conclusion on whether the proposed proceeding is vexatious, and or whether it has reasonable grounds. On 23 October 2015, a letter was sent to the plaintiff by post inviting written submissions in relation to the application of s 55 of the Vexatious Proceedings Act 2014. A similar invitation was sent by email to the defendant. To date (being four months since this invitation), no submissions have been received.

13 Accordingly, I am unable to proceed in my determination of this matter. I direct that the matter be struck out with a right of reinstatement.

[1] Affidavit of Julian Knight affirmed 14 September 2015

[2] Vexatious Proceedings Act 2014 s 56(1)(b)

[3] Vexatious Proceedings Act 2014 s 3

[4] Knight v Money [2015] VSC 105, [12].

Proceedings Act 2014

Information Act 1982

Vexatious Proceedings Act 2014

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