Plaintiff v First Defendant Second Defendant Third Defendant

Supreme Court of Victoria|2015-10-09|Before: McDONALD J

PRACTICE AND PROCEDURE - Vexatious litigant - General litigation restraint order - Plaintiff failed to provide any explanation as to how the application for leave to proceed was materially different from applications for leave to commence or continue a proceeding pursuant to s 21 of the Supreme Court Act 1986 and/or interlocutory applications stayed or dismissed on the basis of being made, commenced or conducted without merit - Court not satisfied that the application is materially different to previous applications made by the plaintiff - Vexatious Proceedings Act 2014, ss 56 and 58.

(i) an order in the nature of an injunction directing the Commissioner of Corrections Victoria to return Mr Knight to the Waaksembyd Unit at Port Phillip Prison, on the ground that the placement of Mr Knight in solitary confinement in administrative segregation in the Acacia High Security Unit at HM Prison Barwon on 16 July 2015 was for an improper purpose; namely, to impede Mr Knight's access to the courts whilst frustrating the court's processes;

(ii) an order in the nature of an injunction directing the General Manager of Port Phillip Prison to release to Mr Knight all of his legal materials, including those held in electronic form (computer files, email, CD, floppy disc); and

(iii) an order in the nature of an injunction directing the General Manager of HM Prison Barwon to provide Mr Knight with the means of examining his legal materials held in electronic format and of producing court documents.

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 or earlier order.'[2] Section 21 of the Supreme Court Act 1986 was repealed by s 102 of the Vexatious Proceedings Act 2014 ('the Act') on 31 October 2014.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. Mr Knight's application for leave to proceed is subject to the mandatory requirements of s 56(1) of the Act, which provides as follows:

56 Person must disclose certain matters

(1) A person subject to a litigation restraint order who makes an application for leave to proceed must disclose the following details to the Victorian court or tribunal in which the application is made -

(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;

(c) details of each interlocutory application which he has made or proceeding which he has commenced or conducted -

(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;

(c) 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);

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

...

4 Mr Knight's application for leave to proceed is supported by an affidavit affirmed by him on 6 August 2015. Paragraphs 2 and 3 of that affidavit are in the following terms:

On 16 October 2014, the vexatious litigant order due to expire on 19 October 2014 was extended pending the outcome of the plaintiff's application by T Forrest J (A-G (Vic) v Knight [2014] VSC 549).

Since the making of the interlocutory order on 16 October 2014, I have made and had determined a number of applications to commence or continue proceedings:

- Knight v Shuard [2015] VSC 36 (20 February 2015)

- Knight v Money [2015] VSC 105 (24 March 2015)

- Knight v Wise [2015] VSC 157 (23 April 2015)

- Knight v Thomas [2015] VSC 283 (3 July 2015)

- Knight v Shuard (22 July 2015)

- Knight v Shuard (29 July 2015)

Leave has been refused in each of the applications referred to in paragraph 2 above.

5 Mr Knight's affidavit lists proceedings which were commenced prior to the repeal of the Supreme Court Act 1986. However, this is not a complete list of the applications made by Mr Knight before the repeal. It is unnecessary to list all of the applications which Mr Knight made under s 21 of the Supreme Court Act 1986 during the period October 2004 and October 2014. Suffice to say, he made numerous such applications.

6 In addition to his failure to address the mandatory requirements of s 56(1)(b), Mr Knight has similarly not addressed the mandatory requirements of s 56(1)(d) of the Act. He has provided no explanation as to how his current application for leave to proceed is materially different to the numerous applications which he made pursuant to s 21 of the Supreme Court Act 1986, as well as the applications for leave to proceed which he has made under the Act.

7 Section 58 of the Act provides that a Victorian court may dismiss an application for leave to proceed made by a person if the court is not satisfied that the application is materially different to a previous application made by that person. The obligation imposed upon Mr Knight by s 56(1)(d) of the Act is mandatory. It is no function of the court to conduct its own inquiry with a view to satisfying itself that the current application is materially different to previous applications made by Mr Knight. Rather, the scheme of the Act imposes an obligation upon a person subject to a general litigation restraint order to place material before the court which enables the court to have the requisite satisfaction that an application is materially different to previous applications made by the applicant.

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. In these circumstances, the appropriate order is to dismiss Mr Knight's application for leave to proceed.

[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.

Proceedings Act 2014

Vexatious Proceedings Act 2014

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