Plaintiff v First Proposed Defendant

1 This proceeding was brought by way of an application for leave to commence a proceeding by a person subject to a general litigation restraint order made pursuant to s 21(2) of the Supreme Court Act 1986. The plaintiff is a person subject to a general litigation restraint order made on 16 October 2014.[1]

2 In addition to seeking leave to bring the proceeding, the plaintiff seeks orders in the nature of certiorari and mandamus pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2005[2] in respect of the decision of the proposed defendants to refuse his application made 12 September 2012 for emergency management days ('EMDs') for the assistance the plaintiff provided to an injured fellow prisoner on 13 June 2012 ('the decision'). Specifically, he seeks the following:

(a) that the decision made by the proposed defendants to decline the plaintiff's application for EMDs be quashed; and

(b) the decision be remitted to the decision-maker or a delegate to be determined in accordance with the law.

3 The decision was conveyed to the plaintiff in a letter from the first proposed defendant dated 24 January 2013. The letter read as follows:

Emergency Management Days

I refer to your letters dated 24 October 2012 and 1 January 2013, and would like to apologise for the delay in my response to your earlier correspondence.

I would firstly like to thank you for providing first aid to a fellow prisoner; your prompt actions are greatly appreciated.

Having carefully considered your application together with advice provided by the Director, Port Phillip Prison,[3] I have decided that although your actions were noted they do not merit the granting of Emergency Management Days. I thank you again for the assistance you provided.

4 The plaintiff's statement of claim, filed 4 June 2013, stated that:

The plaintiff, having being [sic] declared a vexatious litigant by the Court on 19 October 2004, seeks leave to commence proceedings by way of originating motion against the defendant on the grounds that,

(a) The proceedings have substance & are not an abuse of process,

(b) The proceedings are not doomed to fail,

(c) The plaintiff is in the lawful custody of the defendants,

(d) The proceedings concern the reduction in the length of the plaintiff's sentence of imprisonment, &

(e) The proceedings raise novel questions of law in relation to the granting of Emergency Management Days to prisoners in the Victorian prison system.

5 The plaintiff's application was accompanied by an affidavit of the plaintiff sworn 4 June 2013, which contained a 'vexatious litigant declaration' in paragraph [4]. At the date this application was made, the Vexatious Proceedings Act 2014 ('the Act') had not commenced,[4] so the plaintiff was not required to disclose the matters required to be disclosed by s 56 of the Act or follow the procedure under O 83 of the Supreme Court (General Civil Procedure) Rules 2015.

6 On 17 July 2013, orders were made, inter alia, listing the proceeding for hearing on 19 February 2014. These orders were vacated on 15 November 2013.

7 On 3 September 2013, the solicitors for the second defendant advised the Court that he would not seek leave to appear or participate in the proceedings as he was not a decision maker for the purposes of the powers exercised under ss 58E and 112(1)(r) of the Corrections Act 1986.[5]

8 On 11 March 2016, orders were made referring the proceeding to the judge sitting in the Common Law Division Practice Court for determination on the papers not before 6 June 2016. These orders also provided that the first defendant was to provide any further affidavits or submissions by 28 April 2016 and that the plaintiff was to file any submissions upon which he wished to rely by 28 May 2016.

9 On 2 May 2016, the solicitors for the first defendant filed submissions in respect of the vexatious proceeding application as well as the substantive application for judicial review.

10 On 18 May 2016, the plaintiff filed submissions setting out the test to be applied in respect of leave to commence proceedings by a person subject to a general litigation restraint order as well as submissions as to the merits of his substantive application for judicial review of the decision.

11 On 18 July 2016, the proceeding was referred to the presiding judge in the Common Law Division Practice Court.

Relevant principles: the Vexatious Proceedings Act 2014

12 On 19 October 2004, Smith J ordered that the plaintiff be declared a vexatious litigant with effect for 10 years pursuant to s 21(2) of the Supreme Court Act 1986. Section 21(2) of the Supreme Court Act 1986 formerly provided:

The Court may, after hearing or giving the person an opportunity to be heard, make an order declaring the person to be a vexatious litigant if it is satisfied that the person has -

(a) habitually; and

(b) persistently; and

(c) without any reasonable ground -

instituted vexatious legal proceedings (whether civil or criminal) in the Court, an inferior court or a tribunal against the same person or different persons.

13 Section 21 of the Supreme Court Act 1986 was repealed by s 102 of the Act, which came into operation on 31 October 2014. Section 91 of the Act provides that:

An order declaring a person to be a vexatious litigant under section 21(2) of the Supreme Court Act 1986 that is 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.

14 By summons filed 5 September 2014, the Attorney-General of Victoria has sought to extend the 19 October 2004 order. On 16 October 2014 T Forrest J made orders, inter alia, extending that order with effect until the final determination of the Attorney-General's summons. The trial regarding the indefinite extension of the order made on 14 October 2014 was heard by J Forrest J on 12 and 13 July 2016 and his Honour's decision is currently reserved as at the date of publication of this judgment.

15 The effect of the orders of T Forrest J, in concert with s 91 of the Act, is that the plaintiff is taken to be subject to a general litigation restraint order and must apply to the Court for leave to commence a proceeding.[6] Under s 32 of the Act, the effect of a general litigation restraint order made under s 29 is that a proceeding that is commenced in contravention of the order is of no effect.

16 However, ss 54(1) and (2) of the Act provide that a person who is subject to a general litigation restraint order may apply for leave to commence a proceeding that would allow the hearing of the proceeding to which the leave application relates.

17 This proceeding was commenced prior to the enactment of the Act. The transitional provisions in Part 12 of the Act provide that applications made pursuant to s 21(1) of the Supreme Court Act 1986 by the Attorney-General for a declaration that a person is a vexatious litigant that have yet to be determined by the Court are to be dealt with under the Act.[7] However, the transitional provisions do not provide for how the Court should determine whether leave to commence a proceeding by a person declared to be a vexatious litigant under s 21(2) of the Supreme Court Act 1986 that has not yet been heard and determined. This issue was considered recently by Zammit J in Knight v Thomas where her Honour held that applications for leave to commence a proposed proceeding should be dealt with under the Act, which replaces the old regime.[8]

18 Pursuant to s 55 of the Act, the Court may grant leave to commence or continue a proceeding commenced by a person subject to a general litigation restraint only if satisfied that:

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

(b) there are reasonable grounds for the proceeding.

19 The plaintiff submits that he has satisfied the test under s 55 of the Vexatious Proceedings Act 2014 as the proceeding is not vexatious and he has reasonable grounds for the proceeding as, '[t]he question of the granting of EMDs for 'exceptional meritorious conduct' has not previously been examined by the Court'.[9]

20 'Vexatious proceeding' is defined in s 3 to include:

(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; and

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

21 The Act provides additional power to the Court to determine the procedure adopted in an application for leave. Section 63 enables the Court to determine an application for leave on the basis of written submissions without the appearance of the applicant, and the Court may only conduct an oral hearing in exceptional circumstances. This application was heard on the papers with no appearance by either party.

22 Several applications have been made under these provisions by the plaintiff.[10]

Relevant principles: Corrections Act 1986 and Corrections Regulations 2009

23 The statutory framework regarding the granting of EMDs to prisoners in Victoria consists of the Corrections Act 1986, ss 58E and 112(1)(r); and Corrections Regulations 2009, r 78.

24 Section 58E(1) of the Corrections Act 1986 relevantly provides:

Division 3A - Emergency management days

58E Emergency management days

(1) The Secretary may, in accordance with the regulations, reduce the length of a sentence of imprisonment being served by a person or the length of the non-parole period (if one has been fixed in respect of the sentence) on account of good behaviour while suffering disruption or deprivation -

(a) during an industrial dispute or emergency existing in the prison or police gaol in which the sentence is being served; or

(b) in other circumstances of an unforeseen and special nature.

25 Section 112(1)(a) of the Corrections Act 1986 provides that regulations may be made, inter alia, in respect of the privileges of prisoners, as follows:

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;

26 Regulation 78 of the Corrections Regulations 2009 relevantly provides:

78 Emergency management days

(1) If the Secretary grants emergency management days to a prisoner, the length of the non-parole period or, if a non-parole period has not been fixed in respect of the sentence, the length of the sentence of imprisonment is reduced by the number of emergency management days granted.

(2) The number of emergency management days granted must not exceed -

(a) 4 for each day or part of a day on which the industrial dispute or emergency exists;

(b) 14 in other circumstances of an unforeseen and special nature.

27 The power to grant EMDs pursuant to s 58E of the Corrections Act 1986 has been considered by the Court of Appeal in Anderson v Pavic,[11] a decision relied on by the plaintiff and the first proposed defendant.

28 The plaintiff's affidavit sworn 4 June 2013 and submissions dated 18 May 2016 state that he believes his application raises a novel question of law as the granting of EMDs for 'exceptional or meritorious conduct' is extremely rare and has not yet been previously examined by the Court. The plaintiff sets out all the material facts in his submissions and affidavits. The plaintiff has also included the Commissioner's Requirement - Emergency Management Days dated November 2009 as an attachment to his submissions. In essence, the plaintiff submits that the lack of reasons received in respect of the decision will found a claim for relief in the nature of certiorari and mandamus.

1. Given the apparent dearth of EMDs granted for 'exceptional or meritorious conduct', it could be argued that such conduct is completely outside Corrections Victoria's normal expectation (see Anderson -v- Pavic [2005] VSCA 244, at [23). As such, it is conduct that would satisfy the criterion of 'circumstances of an unforeseen and special nature'.
2. Neither defendant has explained the precise reasons why the plaintiff was not recommended for or granted EMDs on this occasion. It is, therefore, not apparent whether it was considered by the defendants that the plaintiff's actions were not meritorious, not meritorious enough or that they did not occur in 'circumstances of an unforeseen and special nature'.
3. The criteria for the granting of EMDs pursuant to s 58E(1)(b) is that the prisoner was 'of good behaviour while suffering disruption or deprivation in...circumstances of an unforeseen and special nature'. There is no requirement that these 'circumstances of an unforeseen and special' constitute an 'emergency'. The only reference to 'emergency' is in s 58E(1)(a).

30 In response to the proposed first defendant's submissions regarding the delay in making the application pursuant to r 56.02(1) of the Supreme Court (General Civil Procedure) Rules 2005, the plaintiff explained the 62 day delay was due to the delay in receiving the notification of the decision in the first place.

31 The first proposed defendant set out the legal framework in relation to the grant of leave to commence or continue proceedings and submitted that the plaintiff has not established that the proposed proceeding is not a vexatious proceeding as required by s 55(a) of the Act. It was further submitted that the proceeding would be a vexatious proceeding in that the application for the type of relief sought is foredoomed to fail and thus an abuse of process.[12]

32 In respect of the substantive proposed application, the first proposed defendant relied on the Court of Appeal's decision in Pavic v Anderson, which considered an application strikingly similar to the plaintiff's proposed application.[13] Specifically, it was submitted that:

24.1 The powers in s 58E are conditioned on the Secretary's (or delegate's) state of satisfaction as to the existence of the factual circumstances which constitute the criteria (rather than that the circumstances must exist as objective fact).[14] ... Nettle JA stated that although he had not reached a concluded view on the subject, 'it strikes me as unlikely that Parliament should have intended that the courts sit in judgment upon questions of fact routinely decided by prison authorities in the course of management and administration for which they are responsible.'[15] Maxwell P also held that, '[w]hether or not there is or is not danger, and whether what has occurred is or is not an emergency, seem to me to be matters for judgement by the decision maker in the particular case'.[16]

33 Accordingly, it was submitted that it would be unlikely that the plaintiff could establish a foundation for the relief sought and therefore has not established any reasonable grounds for bringing the proposed proceeding. Thus, the proposed proceeding would be foredoomed to fail and fall within the definition of 'vexatious proceedings' in the Act.

34 Contrary to the plaintiff's submissions, the Court has previously considered the provisions that relate to the making of decisions regarding the granting of EMDs and the proposed proceeding does not present a novel question of the law.[17] The Court of Appeal held that decisions granting EMDs are a matter of fact to be determined by the Commissioner and specifically discussed what may constitute an 'emergency' for the purposes of the Act; namely, that determining whether there was an emergency was a 'matter of fact and degree' for the decision-maker based on the particular circumstances as they arise.[18] Whilst the Court of Appeal did not reach a concluded view on the specific interpretation of the exercise of power pursuant to s 58E, the Court said:

Whether there is or is not danger, and whether what has occurred is or is not an emergency, seem to me to be matters for judgment by the decision-maker in the particular case.[19]

...

...it strikes me as unlikely that Parliament should have intended that the courts sit in judgment upon questions of fact routinely decided by prison authorities in the course of management and administration of the prison for which they are responsible.[20]

35 Further, there is no basis for the plaintiff's contention the failure to give reasons for the decision would provide the foundation for his claim for certiorari. The making of a decision under s 58E of the Corrections Act 1986 confers a discretionary administrative power and does not require the decision-maker or delegate to provide reasons for the decision to enable prisoners to bring proceedings for judicial review.[21] At common law the reasons for administrative decisions do not form part of the record for the purposes of certiorari unless incorporated by the decision maker.[22] Thus, the plaintiff's contention that the reasons for the decision are inadequate cannot support his claim for relief and would most certainly fail, rendering the proceeding an abuse of process.

36 I am satisfied that the proposed proceeding is a vexatious proceeding and that there are no reasonable grounds to continue the proposed proceeding pursuant to s 55 of the Vexatious Proceedings Act 2014. Accordingly, the plaintiff's application for leave to commence the proposed proceeding is refused.

[1] A-G (Vic) v Knight [2014] VSC 549 (16 October 2014). On 19 October 2004, Smith J declared the plaintiff to be a vexatious litigant for the period of 10 years pursuant to s 21 of the Supreme Court Act 1986. This order was extended, pending final determination of the Attorney-General's application for an indefinite extension of the orders, by order of T Forrest J on 16 October 2014.

[2] These rules have been superseded by the Supreme Court (General Civil Procedure) Rules 2015.

[3] In a letter dated 10 January 2013, the second proposed defendant informed the plaintiff that he had not recommended the granting of EMDs to the plaintiff for the assistance he provided to an injured fellow prisoner.

[4] The Act was assented to on 17 June 2014 and came into operation on 31 October 2014: Vexatious Proceedings Act, s 2(2).

[5] Relying on Re Palmer and Minister for the Capital Territory (1978) 1 ALD 183, 191 and Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 408-9.

[6] Vexatious Proceedings Act 2014, s 54(1).

[8] Knight v Thomas [2015] VSC 283 (3 July 2015) [22].

[9] Plaintiff's submissions filed 18 May 2016 [26].

[10] See, eg, Knight v Shuard [2015] VSC 36 (20 February 2015); Knight v Minister for Corrections [2015] VSC 56 (5 March 2015); Knight v Minister for Corrections (No 2) [2015] VSC 213 (20 May 2015); Knight v Thomas [2015] VSC 283 (3 July 2015).

[11] [2005] VSCA 244 (4 October 2005).

[12] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 393.

[13] Pavic v Anderson [2005] VSCA 244 (4 October 2005).

[14] Ibid [18], [26] (Maxwell P); [29] (Warren CJ); [31] (Nettle JA).

[17] Ibid. Whilst the Court wrote three judgments, Warren CJ, Maxwell P and Nettle JA all concluded in essence that the power conferred by s 58E was to be exercised by the Secretary or his/her delegate making a decision based on their own assessment of the facts as to whether the circumstances merited an award of EMDs for one or more prisoners.

[21] For completeness, I would note that the regulations do not confer any additional powers or requirements in the decision-making process on the decision-maker or their delegate: Anderson v Pavic [2005] VSCA 244 (4 October 2005) [3] (Maxwell P).

[22] See, eg, Sherlock v Lloyd & ors [2010] VSCA 122 (28 May 2010) [16] (Maxwell P, Ashley JA and Byrne AJA); Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, 667 (Gibbs CJ).