Plaintiff v First Defendant

1 Mr Julian Knight, who was declared a vexatious litigant by this Court and is now to be regarded as being subject to a general litigation restraint order, seeks leave to commence a proceeding by originating motion seeking declarations that:

(a) The power of the Secretary of the Department of Justice to separate prisoners, pursuant to regulation 27 of the Correction Regulations 2009 (Vic) does not include the power to impose solitary confinement or a punishment regime on a prisoner who has not committed a criminal or prison offence;

(b) The power of the Secretary of the Department of Justice, pursuant to s 54A of the Corrections Act 1986 (Vic), to withdraw privileges from a prisoner must be exercised on an individual basis, cannot be exercised in advance of a relevant event occurring & must not be exercised as a form of punishment.

2 The first defendant is the Commissioner, Corrections and the second defendant is the Governor of Port Phillip Prison.

3 Mr Knight is a prisoner at Port Phillip Prison. He was declared a vexatious litigant in 2004 and because of a change of legislation is now subject to a general litigation restraint order.

4 His proposed proceeding seeks to challenge what he describes as the prisoner separation policy and the circumstances under which prisoners' privileges are removed. Mr Knight's proposed proceeding arises from actions affecting him that were taken at the Prison in January 2014.

5 I have decided that Mr Knight should not have leave to commence the proceeding as it would be a vexatious proceeding and would have no reasonable grounds.

6 On 19 October 2004, Mr Knight was declared a vexatious litigant under s 21(2) of the Supreme Court Act 1986. An order of Smith J restrained Mr Knight from commencing any legal proceedings in this Court, an inferior court or any tribunal for a period of 10 years. On 16 October 2014, this order was amended by an order of T Forrest J, so that Mr Knight's status as a vexatious litigant under s 21(2) of the Supreme Court Act 1986 was extended until the final determination of his application brought by summons filed 5 September 2004 in that proceeding or earlier order.

7 On 31 October 2014, the Vexatious Proceedings Act 2014 came into operation. Under s 102 of that Act, s 21 of the Supreme Court Act 1986 was repealed, while pt 12 set out a number of transitional provisions, including in relation to persons previously declared vexatious under s 21 of the Supreme Court Act 1986. Relevantly, s 91 of the Vexatious Proceedings Act 2014 provides that:

(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.

8 In oral submissions, counsel for the defendants submitted that, as Mr Knight was to be deemed the subject of a 'general litigation restraint order', as defined under s 3 of the Vexatious Proceedings Act 2014, the applicable regime for his application to commence this proceeding is that which would apply to a person under a general litigation restraint order under that Act. This Court's power to make a general litigation restraint order is set out at s 29 of that Act, while ss 54 and 55 set out the procedure and tests to be applied in determining an application for leave to commence or continue proceedings by a person subject to such an order:

54 Application for leave to commence or continue proceeding

(1) 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.

...

55 Victorian court or tribunal may grant leave to commence or continue proceeding

On an application under section 54, a Victorian court or tribunal may grant a person who is subject to a general litigation restraint order leave to commence or continue a proceeding if the Victorian court or tribunal is satisfied that -

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

(b) there are reasonable grounds for the proceeding.

9 The test set out at s 55 is to be contrasted with the test applicable under s 21(4) of the Supreme Court Act 1986 in relation to applications for leave to commence or continue proceedings made by a person subject to a s 21(2) vexatious litigant order:

21 Vexatious litigants

...

(4) 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.

10 Counsel for the defendants submitted that there was no basis upon which the earlier test could apply, given that the transitional provisions of the Vexatious Proceedings Act 2014 make it clear that the order to which Mr Knight is subject is now deemed a general litigation restraint order for the purposes of that Act. The test set out at s 21(4) of the Supreme Court Act 1986 no longer applies, as s 21 was repealed on 31 October 2014.

11 Mr Knight did not contest that the regime under the Vexatious Proceedings Act 2014 applied in relation to his application for leave to commence proceedings.

12 I accept the defendants' submissions about the application of the Vexatious Proceedings Act 2014.

Statutory provisions concerning prisoner separation and withdrawal of privileges

13 The separation of prisoners is regulated by the following provisions of the Corrections Act 1986 ('the Act') and Corrections Regulations 2009 ('the Regulations'):

Corrections Act 1986

48 Definitions

In this Part -

disciplinary officer means a prison officer -

(a) nominated by the Secretary as a disciplinary officer; or

(b) in a class of prison officers nominated by the Secretary as disciplinary officers;

privilege in relation to a prison means any of the privileges determined in accordance with the regulations for that prison;

prison offence means a contravention of this Act or the regulations;

register of offences means the register of prison offences established in accordance with the regulations.

...

54A Power of Secretary to withdraw privileges

(1) If the Secretary is satisfied that -

(a) an investigation into whether a prisoner committed a prison offence is being carried out; or

(b) a prisoner has been charged under section 50(5)(d) with a prison offence; or

(c) steps have been taken to have an alleged prison offence dealt with under the criminal law -

the Secretary may withdraw one or more of the prisoner's privileges for such period as the Secretary thinks fit.

(2) The Secretary may only withdraw a prisoner's privileges under subsection (1) if he or she is satisfied that it is necessary to do so in the interests of the management, good order and security of the prison concerned.

(3) The withdrawal of privileges under subsection (1) does not affect the imposition of any other penalties under this Part or under the criminal law in respect of the prison offence.

112 Regulations

(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; ...

Corrections Regulations 2009

Division 8 - Separation

27 Separation by the Secretary

(1) lf reasonable for the safety or protection of the prisoner or other persons, or the security, good order or management of the prison, the Secretary may, in writing, order the separation of a prisoner from other prisoners.

(2) The amount of time a prisoner is separated must not be longer than is necessary to achieve the purposes set out in subregulation (1).

(3) ...

(4) ...

(5) Before making a separation order, the secretary must consider the medical and psychiatric condition of the prisoner.

(6) The prisoner must be advised of the reasons for the separation and given a copy of the separation order.

(7) Unless extended by a new order, a separation order ceases -

(i) on expiry of the order; or

(ii) when the prisoner is classified by a sentence management panel; or

(iii) when cancelled by the Secretary.

Division 12 - Prisoner privileges

42 Prisoner privileges

(1) Annually, the Commissioner must submit to the Secretary, for the Secretary's approval, a list of prisoner privileges to operate in the prisons for all prisoners on general or special classifications.

(2) The Secretary may approve or refuse to approve the list submitted under subregulation (1), or approve it with changes and may, at any time, delete from or add to the list of prisoner privileges to operate in a prison.

(3) The privileges for the time being appearing in a list approved under this regulation are the privileges determined for the prison.

14 Mr Knight made an affidavit in support of his application. Mr R Wise, Deputy Commissioner Operations Corrections Victoria, also swore an affidavit. Neither was cross-examined. The facts described below are taken from those affidavits.

15 Mr Knight stated that on 15 May 2008 he was transferred to Waaksembyd Unit, a mainstream accommodation unit at Port Phillip Prison.

16 Mr Knight stated that on 15 January 2014, a prisoner was injured in a fall in the kitchen in the Waaksembyd Unit. He and another prisoner were present in the servery when the incident occurred. Mr Wise stated that prison officers on duty reported that they suspected that the injured prisoner may have been assaulted. Mr Knight stated that, as a result of those reports, he and the other prisoner were separated into their cells on the authority of Mr J Nesci, who is Safer Custody Manager of Port Phillip Prison.

17 Mr Wise stated that the injured prisoner suffered a broken jaw and that as Mr Knight left the kitchen, correctional officers at the scene reported that he yelled 'Anyone else caught stealing would find themselves slipping over' or words to that effect.

18 On 16 January 2014, as a result of the incident, Mr Nesci forwarded an Authority to Separate Prisoner form to Corrections Victoria's Sentence Management Unit in the Department Office in Melbourne. The requested authority was to separate Mr Knight and the other prisoner under investigation into their own cells pending investigation. The authority form described the incident as follows:

Request to separate prisoner in his own cell pending investigation into the alleged assault on prisoner.

19 The authority to separate was endorsed by Ms M Hosking, the Acting Manager of Corrections Victoria's Major Offenders Unit. The period of separation was listed as seven days but the location of the separation was changed by Ms Hosking to the Charlotte Management Unit, Port Phillip Prison. Ms Hosking held a delegation from the Secretary of the separation powers contained in reg 27.

20 On 17 January 2014, Mr Knight and the other prisoner were moved from their cells in Waaksembyd Unit to cells in the exclusion placement area of Charlotte Management Unit. On 20 January 2014, Mr Knight filed in this Court an application for writ of habeas corpus. On 31 January 2014, Rush J refused the application.[1]

21 Mr Knight described Charlotte Management Unit as a punishment and management unit where prisoners are effectively locked in their cells for the majority of the day. There is limited communal association and few facilities. In normal accommodation at the prison, prisoners are out of their cells mixing together for 12 hours a day, with a range of communal facilities available, such as pool and table tennis tables and communal television.

22 Mr Knight stated that prisoners in the exclusion placement area did not have access to privileges. By being placed in that area, the prisoners' privileges had been removed. Prisoners in the other cells in Charlotte Unit, other than in the exclusion placement area, did enjoy privileges.

23 Mr Wise referred to the Commissioner's Requirement on Disciplinary Process and Prisoner Privileges document issued in December 2013. It stated in part:

Prisoner Privileges

Only those privileges approved by the Secretary and referred to in Attachment 3, may be withdrawn by the Disciplinary Officer or Hearing Officer, as a penalty for a prison offence.

Withdrawal of a privilege as a penalty for a prisoner having committed an offence should not be used where other prisoners would be disadvantaged.

24 The December 2013 document attached the 2014 List of Privileges, setting out the list of privileges to apply in all prisons for all prisoners not on a restricted regime. The privileges listed include:

Access to all in-cell electrical appliances (other than radios, fan, jug and shaver).

...

Association with other prisoners at the same prison location who are subject to the same regime.

* The full list of privileges for prisoners classified to a management or high security unit may not apply, given the regime under which the prisoner is accommodated.

* The full list of privileges for prisoners classified as on an intermediate regime may not apply, given the conditions under which the prisoner is accommodated.

... the prisoners incarcerated in a management unit may be at increased risk of harm from other prisoners, or potentially of risk of self harm, because of the impact of being under investigation or the subject of an acknowledged risk from other prisoners. Charlotte Unit, like other management units, is, therefore, specifically designed and operated to manage these risks. Examples of the measures adopted to achieve this are the increased ratio of correctional officers to prisoners, the separate management of prisoners, and the physical cell lay out which involves the elimination of most self-harm points. Prisoners in Charlotte are not permitted to normally mix with other prisoners in the communal parts of the Unit and are provided with meals through traps in the doors to their cells, which otherwise remain closed and locked at all times.

...

I am informed by Mr Thomas and believe, that while the plaintiff was in Charlotte Unit, he:

(a) had access to his legal documentation folders;

(b) had limited access to telephone;

(c) had limited canteen spend, meaning there was a smaller range of goods he could purchase;

(d) had access to basic personal items, including underwear, T-shirts, basic toiletries and limited stationery;

(e) was entitled to a non-contact visit each week;

(f) was given a 1 hour run out each day, where he could not mix physically with other prisoners, but could communicate across the exercise yards with those prisoners in the Charlotte Unit EPA section.

Prisoners on management regimes or in Management Units cannot access the prisoner library or gymnasium. When the plaintiff was in the Charlotte Unit EPA section, he did not have access to television, because no television is installed in the EPA cells.

27 Mr Wise stated that prisoners are typically placed in the exclusion placement area for a short time period, often because an investigation into poor behaviour is pending. There were 12 cells in the exclusion placement area out of the 23 cells in Charlotte Unit.

28 On or about 31 January 2014, the police who had investigated the incident referred it back to Port Phillip Prison for possible prison disciplinary action. The police advised that the injured prisoner had made no complaint against anyone.

29 Mr Knight was informed on 4 February 2014 that there would be no police action following their investigation and that he would be cleared from Charlotte Unit and placed in the Gorgan Unit when a bed became available.

30 On 6 February 2014, Mr Knight was moved from the Charlotte Management Unit to Gorgan Unit.

31 On 28 February 2014, Mr Knight was charged with prison offences relating to the incident. The charges were 'possible assault on prisoner and disruptive behaviour'. The charges, which were heard on 7 March 2014, were not proved and were dismissed.

32 On 1 May 2014, Mr Knight was returned to the Waaksembyd Unit.

Conclusions in Knight v Governor of Port Phillip Prison[2]

33 In the judgment given on 31 January 2014, Rush J stated:

Mr Knight made a number of submissions concerning his present status:

(a) that the statutory framework governing the separation of prisoners enlivens the Court's jurisdiction to hear an application for habeas corpus in circumstances where such separation is illegal;

(b) that provisions of the Corrections Act 1986 and the Corrections Regulations 2009 prevent removal of privileges pending investigation and such removal can only occur after a finding of guilt at a disciplinary hearing;

(c) that the denial of access to hard copy Court documents and the prison library computer mean he is unable to prepare for Court and Court imposed deadlines for provision of submissions in a number of imminent Court proceedings.[3]

34 Rush J noted that reg 27 permitted the separation of a prisoner for 'the security, good order or management of the prison'. His Honour, after being provided with copies of relevant instruments of delegation of powers, found that the decisions in question were made by persons to whom delegation was validly given. He stated that reg 42 required the submission of a list of privileges, but the regime under which Mr Knight was currently accommodated did not provide for such privileges. His Honour dismissed the application by Mr Knight for leave to bring his proceeding for writ of habeas corpus.

36 The habeas corpus proceeding only required determination of whether the conditions in which Mr Knight and the other prisoner were detained entitled them to obtain the issue of the writ of habeas corpus. The habeas corpus proceeding was brought while he was sitting in a bare cell and it was not a considered application. Rush J's comment that 'the regime under which Mr Knight is currently accommodated does not provide for such privileges' did not go to the heart of the habeas corpus application. No full hearing had occurred, Rush J's judgment was interlocutory, and no estoppel could arise from it.

37 The separation of prisoners occurred pursuant to the application of an inflexible policy, that a prisoner who was being investigated for an act or any prison offence is automatically removed to Charlotte Unit. Such an inflexible application of a policy was invalid.[4] The separation of prisoners and the removal of privileges from prisoners is to be decided on an individual basis and not pursuant to a general policy enforced as soon as the relevant event occurs.

38 Ms Hosking, the Manager of the Major Offenders Unit, did not have the statutory authority to remove privileges. That power could only be exercised by the Secretary.[5]

39 Ms Hosking made her decision immediately after receiving Mr Nesci's Authority Form. She had 'second guessed' the prison manager by deciding that Mr Knight and the other prisoner should be separated into a different facility, the Charlotte Unit management section, without their property from their cell going with them. They were placed in the exclusion placement area of Charlotte Unit in bare cells which were normally used for prisoners undergoing punishment. They suffered the loss of all privileges. They could have been provided with their usual privileges, such as the use of electrical jugs, but the prison authorities did not provide them.

40 On the day of Rush J's judgment, the defendant to that litigation conceded in Court that the police investigation had been concluded but, because of cell availability, Mr Knight and the other prisoner were unable to be removed from the Charlotte Management Unit and placed in a normal accommodation unit, although they were given access to a television.

41 Mr Knight submitted that the prison management could not create a regime whereby prisoner privileges are removed as a result of the prisoner being placed into locations where those privileges do not exist or cannot be provided. Some logical connection must exist between the privilege that is being removed and the incident that is being investigated or the reasons for the prisoner separation.

42 While a court may be cautious in interfering with the decisions of prison management, prison management should be able to explain why the removal of privileges is relevant to an investigation into an alleged prison assault.

43 Any fault found in the declarations that Mr Knight sought could be rectified by redrafting.

44 The defendants submitted that Rush J had considered Mr Knight's arguments and decided that the two separation orders were valid. His Honour found that Mr Knight had been lawfully detained. Principles of issue estoppel, the Anshun estoppel and abuse of process prevented that finding being reargued.[6]

45 The privileges regime is discretionary. Privileges attach to the particular prison regime in some parts of the prison and not in others. A decision to separate a prisoner does not thereby remove privileges. Rush J had acknowledged that a prisoner separation decision did not remove privileges.

46 The defendants had not applied a blanket prisoner separation policy. The prisoner separation order was made because of the very serious circumstances of the incident. The Secretary or delegate may consider the good order or management of the prison in deciding whether to make a separation order. Mr Knight was present at the time of the incident and it was reported that he had made the comments set out above. The actual circumstances of the case were considered in deciding to separate the prisoners. There was a clear factual basis for the decision. The power under reg 27 may be exercised in any circumstances where the Secretary or delegate considers that separation is reasonable for the safety or protection of the prisoner or other persons, or the security, good order or management of the prison.

47 The declarations that Mr Knight sought could not be made in a factual vacuum. Mr Knight was seeking much broader relief than anything related to the facts of the incident. There was no evidence that the defendants or prison authorities had exercised a power to remove privileges. The list of privileges approved by the Secretary does not provide for privileges in management units.

48 The proposed declarations also lacked utility and should not be granted in the dynamic and complex environment of a prison. Any declarations that might be granted would have to be tied to the facts of this case.[7] Mr Knight is now back in his initial accommodation.

49 There is no dispute that generally a public official cannot exercise a discretionary power in accordance with a rule or policy without regard to the merits of the particular case.

50 I only have to be satisfied that Mr Knight's proposed proceeding is not a vexatious proceeding and that there are reasonable grounds for it. Mr Knight does not have to satisfy me that his proceeding would succeed.

51 I am not satisfied that Mr Knight has reasonable grounds for arguing that the separation of prisoners decision made on 16 January 2014 was the inflexible application of a policy. Mr Nesci's authority form suggests that the decision was based on the particular circumstances of the incident of 14 January 2014. I am therefore also not satisfied that the proceeding is not a vexatious proceeding.

52 The first declaration that Mr Knight seeks is that the power to separate prisoners does not include the power to impose solitary confinement or a punishment regime on a prisoner who has not committed a criminal or prison offence. Mr Knight did not provide any evidence that he had been separated as a punishment and there are no reasonable grounds for an argument that that had occurred. Separating prisoners as a punishment might be unlawful. But there is no evidence that that occurred.

53 Nor do I consider that Mr Knight has reasonable grounds for arguing that the defendants made a decision to remove his privileges. The privileges were not normally available in the Charlotte Unit exclusion placement area. The cells in that area in which Mr Knight was accommodated did not provide for those privileges. There are no reasonable grounds that would support the making of the second declaration. I therefore am also not satisfied that the proceeding is not a vexatious proceeding.

54 Even if I were persuaded that Mr Knight's legal arguments may, in theory, have some reasonable grounds, the question of making declarations which are expressed to apply to all circumstances also presents a formidable obstacle to the success of his case.

55 The declarations are sought in respect of events that occurred 13 months ago, in January 2014. Mr Knight has now returned to the part of the prison in which he was originally accommodated.

56 No alternate form of appropriate declaration, for which there were reasonable grounds, was raised by Mr Knight or appeared from his submissions or from the facts presented.

57 As was put against Mr Knight, declarations, particularly in respect of the conduct of a prison, would usually need to be directed to particular fact situations.

58 As Gillard J stated in Rich v Groningen:[8]

the exercise of powers and duties by prison authorities depends on factual situations which arise at a particular point in time and which are the subject of decisions made by officers in the day-to-day management and operation of the prison. The facts will change. The weight attached to factors such as security, fire risk and good administration and management of the prisons will vary considerably depending on the circumstances.[9]

59 I consider that the form of the declarations that Mr Knight seeks would be inappropriate even if I found that there were reasonable grounds for finding that the decisions made in January 2014 were invalid.

60 As Mr Knight argued, each case has to turn on its facts and it would be wrong to make declarations that would govern actions taken by prison authorities in future circumstances where the facts may be quite different.

61 There is one other matter to mention. If Mr Knight had otherwise satisfied me that his proceeding had reasonable grounds, the orders and reasons of Rush J would not have been a bar to Mr Knight's application for declarations. They were not a final determination of the issues argued in this proceeding. Estoppel and related doctrines play a restricted role in fettering administrative decisions in public law because jurisdiction cannot be exceeded and statutory powers and duties cannot be fettered.[10] Speaking generally, a court should be very cautious to apply those doctrines to prevent an individual from challenging a public decision, unless the litigation only seeks relief that had been considered in previous litigation that he or she brought.

62 Mr Knight sought the specific relief of the issue of a writ of habeas corpus before Rush J. The outcome of that proceeding does not bar a subsequent proceeding challenging policies about separation and loss of privileges if there are reasonable grounds for arguing that unlawful decisions had been made. But Mr Knight has presented no such grounds.

63 I am not satisfied under s 55 of the Vexatious Proceedings Act 2014 that the proposed proceeding is not a vexatious proceeding and I am not satisfied that there are reasonable grounds for the proposed proceeding.

64 Had I been applying s 21(4) of the Supreme Court Act 1986 then, for the same reasons that I have given above, I would not have been satisfied that the proposed proceeding is not or will not be an abuse of the process of the Court.

[1] Knight v Governor of Port Phillip Prison [2014] VSC 10.

[4] Mr Knight relied on McEvoy v Lobban (1988) 35 A Crim R 68.

[5] Corrections Act 1986 s 8.

[6] Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, 602-3.

[7] The defendants relied on Rich v Groningen [1997] VSC 35; (1997) 95 A Crim R 272.

[8] [1997] VSC 35; (1997) 95 A Crim R 272.

[10] H W Wade and C F Forsyth, Administrative Law (Oxford University Press, 2009) 205; Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; Minister for Immigration v Kurtovic [1990] FCA 22; (1990) 21 FCR 193.