Plaintiff (Applicant for leave to bring proceedings) v Proposed Defendant

Supreme Court of Victoria|2011-07-07|Before: HOLLINGWORTH J

ADMINISTRATIVE LAW - Relief sought in the nature of certiorari and mandamus - Denial of prisoner's application for in-cell computer - Corrections Act 1986 ss 47, 112

Sean Morrison, Solicitor, Legal Services, Department of Justice

**1 The plaintiff was imprisoned for murder in 1987. He is serving a life sentence[1] and is not eligible for parole before 2014. He is currently imprisoned at Port Phillip Prison.

2 On 19 October 2004, Smith J declared the plaintiff a vexatious litigant.[2] Relevantly, his Honour's orders provided that the plaintiff "must not without the leave of the court commence, within the period of 10 years from this date, any legal proceedings (whether civil or criminal) in the court."

3 The plaintiff has been attempting, for a number of years, to obtain permission to purchase and maintain a computer in his cell.

4 In this case, he applies by originating motion and supporting summons, both dated 8 February 2011, for leave pursuant to s 21(4) of the Supreme Court Act 1986, to commence a proceeding ("the proposed proceeding") in this Court, against the proposed defendant, the Deputy Commissioner of Corrections Victoria.

5 In the proposed proceeding, the plaintiff intends to seek:

(a) An order in the nature of certiorari, quashing the proposed defendant's decision of 22 December 2010 to deny the plaintiff's "application for access to a personal computer"; and

(b) An order in the nature of mandamus, requiring the proposed defendant to reconsider the plaintiff's application for access to an in-cell computer, according to law.

6 The proposed defendant opposes the granting of leave to commence the proposed proceeding, on the ground that it is foredoomed to fail and would therefore be an abuse of process. However, there was no suggestion that the proposed defendant would not be the appropriate defendant, were such a proceeding to be issued.

7 The plaintiff's most recent application for access to an in-cell computer was made on 15 July 2010, and denied on 22 December 2010. This was his eleventh such application since 23 August 2006.[3]

8 The plaintiff has brought two previous applications in this court, seeking leave to challenge earlier decisions refusing him access to an in-cell computer. The earlier proceedings concerning his access to in-cell computers were as follows:**

(a) In Knight v Money,[4] Byrne J refused leave to commence a proceeding seeking injunctive and declaratory relief, and relief in the nature of mandamus; and

(b) In Knight v Hastings & Roach,[5] Robson J refused leave to commence a proceeding seeking injunctive relief, but granted limited leave to commence a proceeding seeking declaratory relief. In The Commissioner, Corrections Victoria v Knight,[6] the Court of Appeal upheld Robson J's decision.

Discretion to grant leave under s 21(4)

**9 As a vexatious litigant, the plaintiff requires leave to commence the proposed proceeding. Section 21(4) of the Supreme Court Act relevantly provides that "leave must not be given unless the court ... is satisfied that the proceedings are not or will not be an abuse of process of the court."

10 The court's power is discretionary. Before the power is enlivened, the court must be satisfied that the proposed proceeding is not or will not be an abuse of process. The onus rests on the applicant for leave to establish that the proceeding will not be an abuse of process. The meaning of "abuse of process" under s 21(4) was considered by the Court of Appeal in Phillip Morris Ltd v Attorney-General (Vic).[7]

11 In Phillip Morris, the court cited with approval the examples of what may constitute an abuse of process, which were given in Walton v Gardiner[8] by Mason CJ, Deane and Dawson:**

(a) Where the proceeding can be clearly seen to be foredoomed to fail;

(b) Where the court in which the proceeding is instituted is, in all the circumstances, a clearly inappropriate forum; and

(c) Where, notwithstanding that the circumstances do not give rise to an estoppel, the continuance of the proceeding would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.[9]

**12 If the threshold issue of abuse of process is determined in an applicant's favour, additional discretionary factors may be relevant to the grant of leave.[10]

In considering whether a proceeding would be an abuse of process, it is sometimes relevant to consider its prospect of success, but in a strictly limited respect. The issue is whether the proceeding is foredoomed to fail, not whether it has reasonable grounds.[11]

**14 In Phillip Morris, Ormiston and Eames JJA said that on an application such as this, it is ordinarily not practicable to decide questions of substantive fact, although that rule is subject to exceptions in appropriate circumstances.

15 The plaintiff rejects the proposed defendant's submission that he is seeking to re-litigate matters previously decided in Money and Hastings. He argues that the forms of relief sought in the proposed proceeding are different from those previously sought, and the proposed proceeding is not foredoomed to fail.**

**16 The plaintiff's current application for access to an in-cell computer, dated 15 July 2010, runs to some 6 pages. It sets out in some detail the reasons why the plaintiff said he requires such access, including the following:

(a) For use in 3 current Supreme Court proceedings and 2 current VCAT proceedings, in which he is self-represented. Corrections Victoria, or one of its officers, is the opposing party in almost all of those proceedings. He explained the impact which the lack of access to an in-cell computer had and has on his ability to prepare for and conduct those proceedings;

(b) For use in one of 3 certificate courses in which he was currently enrolled through the Kangan Institute, and a degree course in which he was currently enrolled through Open Universities Australia. He explained the impact which the lack of access to an in-cell computer has and had on his ability to prepare for and comply with the requirements of those educational courses;

(d) For him to take the minutes of the monthly meetings of the Port Phillip Prisoners' Representatives Committee meetings, which were required to be recorded on a computer floppy disk.

17 The plaintiff pointed out the logistical problems which he experiences trying to undertake all of the above activities, using one of the 4 working computers available in the prison library for the use of around 780 prisoners in Port Phillip Prison.

18 The proposed defendant gave his decision in a brief letter dated 22 December 2010 ("the decision"). Excluding formal parts, the decision was in the following terms:

Having regards to your grounds of your application and the basis on which an in-cell computer will be considered appropriate as set out in the Commissioner's Requirement I have decided not to approve an in-cell computer for the following reasons:

• That you have continued to enrol in education courses and have obtained a long list of qualifications during your imprisonment without an in-cell computer. I note your claim that the Port Phillip Library only has MS Word 2003 and most of your study materials come in MS Word 2007 format, and that although Kangan TAFE has MS Word 2007 this is for Kangan TAFE classes only. I am satisfied that as the Education billet you have substantial access to the PC Lab computers in the Education Centre, which I understand are loaded with MS Word 2007.

• I note that since your application the number of computers at Port Phillip prison has increased for the use of all prisoners.

• As you are aware, there is no right in the Corrections Act to an in-cell computer and decisions to allow a prisoner to have an in-cell computer must be balanced with the paramount consideration of the management and security of a prison. Any approval of non-standard in-cell equipment such as personal computers increases security risks and imposes a significant burden to monitor compliance.

• I am also satisfied that you have been able to prepare and print a vast volume of correspondence, court documents and education-related documents for a long period of time without an in-cell computer.

• You have not provided any evidence that you have been unable to comply with court requirements or deadlines in your court proceedings by reason of the absence of an in-cell computer. You have in fact prepared a significant number of detailed and lengthy documents to support those proceedings.

Accordingly I refuse your application for an in-cell computer.

19 The Commissioner's Requirement, which is referred to in the decision, will be considered later in these reasons.**

20 In his originating motion, the plaintiff says that:

(a) The proposed proceeding has substance and is not an abuse of process;

(d) The plaintiff is in the lawful custody of the proposed defendant;

(e) The proposed proceeding raises novel questions of law in relation to prisoners' access to in-cell computers within the Victorian prison system;

(f) The proposed proceeding concerns significant action taken by the proposed defendant in his role as Deputy Commissioner;

(g) The proposed proceeding relates to the plaintiff's use of his remaining time in custody, to his attempts to facilitate his rehabilitation, and to his preparation for his eventual release back into the community; and

(h) This court has previously heard cases involving prisoners' access to personal "in-cell" computers on at least eight occasions since 2003.

21 The grounds on which the plaintiff proposes to seek relief in the nature of certiorari and mandamus are as follows:

(a) The decision involves an improper exercise of power, as it fails to take into account 8 specific relevant considerations, and takes into account 4 specific irrelevant considerations;

(b) The decision "breaches the plaintiff's right at common law and pursuant to s47(2) of the Corrections Act 1986 ("the Corrections Act"), of unimpeded access to the courts, as it has the aim and/or effect of hindering the plaintiff's preparation of proceedings for which he has already been granted leave to proceed, and the plaintiff's preparation of applications for leave to proceed";

(c) The decision contravenes the no bias rule of natural justice, as a reasonable person would apprehend that the decision made by the proposed defendant was not free from bias, given that every other application made by other prisoners on legal grounds has been approved;

(d) The decision exhibits the nature of an inflexible policy;

(e) The decision involves an improper exercise of power, as it was so unreasonable that no reasonable body would have reached it, given 11 specified matters; and

(f) The decision involved an improper exercise of power, as it was made for the improper purposes of:

(i) imposing a punishment on the plaintiff under the guise of applying the proposed defendant's computer policy;

(ii) hindering the plaintiff in his preparation and prosecution of court and tribunal proceedings against the proposed defendant; and

(iii) avoiding possible adverse media criticism of a decision to grant the plaintiff access to a personal in-cell computer.

**22 The plaintiff filed the following documents in support of his application for leave:

(a) His primary affidavit, dated 8 February 2011 ("the February affidavit");

(b) His affidavit in reply, dated 28 April 2011 ("the April affidavit"); and

(a) His affidavit, dated 6 April 2011 ("the Wise affidavit");

(b) Written submissions, dated 2 May 2011, and filed in this proceeding; and

(c) Part of some written submissions, dated 2 May 2011, and filed in another proceeding which was before me on the same date: Knight v Corrections Victoria.[12]

24 During the course of the hearing, the following further documents were tendered:

(a) Two affidavits of Brendan Francis Money, one dated 7 April 2009 and filed in Money, and the other dated 3 February 2010 and filed in Coulston v Wise;[13]

(b) A letter dated 6 April 2009 from the proposed defendant to Paul Spadano, the Acting Director of Port Philip Prison, which attached a list of privileges; and

**25 The plaintiff did not seek certiorari in either the Money or Hastings cases. He sought mandamus in Money, albeit in relation to a different list of privileges and different Commissioner's Requirement.

26 Relief in the nature of mandamus lies where there is a refusal to exercise jurisdiction conferred, or to perform a duty imposed, by law.

27 The proposed defendant argues that there is no statutory duty on the proposed defendant (or any other relevant officer) to determine that the plaintiff have access to an in-cell computer. And even if a legal entitlement could provide a sufficient basis for the grant of mandamus, he says there is no enforceable legal entitlement in the present circumstances to an in-cell computer. Although there is a discretionary practice within prisons of permitting access to an in-cell computer in certain circumstances, the proposed defendant says there is no statutory right in prisoners to have such access.

28 The proposed defendant did not deny that relief in the nature of certiorari may be granted, even in the absence of a legal right or duty, if there is a relevant interest or legitimate expectation affected by the decision which is sought to be reviewed.

29 The plaintiff argues that he has a "legitimate expectation" that he will be given access to an in-cell computer if he meets the eligibility criteria, according to the regular practice of the proposed defendant. He also argues that he has a legitimate expectation of receiving procedural fairness in the making of the decision. He says that the decision is affected by jurisdictional error of one or more of the types listed earlier in these reasons.

30 Relief in the nature of certiorari and mandamus is discretionary. Considerations relevant to the exercise of that discretion include the utility of the relief which is sought, as well as the public interest that there should be an end to litigation.**

**31 I will deal first with the issue of whether the plaintiff could seek relief in the nature of certiorari or mandamus, on the basis that the decision breaches his common law right of unimpeded access to the courts.

32 There is a well-established common law right to unimpeded access to the courts, as part of a fundamental right to a fair trial. Most commonly, that is a right which is asserted in the criminal proceeding in which the applicant alleges that they are being denied a fair trial, usually by seeking a stay of that proceeding unless and until that unfairness is removed.

33 The authorities indicate that the right is breached only by action or inaction that would, in effect, prevent a person from accessing the courts.[14]

34 Lasry J in R v Rich (Ruling No 2)[15] said:

In my opinion it would obviously be very convenient for the accused to have a laptop computer but that is not the test. The question is whether such a facility is integral to the fair trial of the accused or, put in other words, whether without a laptop computer his trial will be unfair such as to justify a stay.[16]

35 Some cases have held that it is not a right which is able to be asserted in separate civil proceedings, such as the proposed proceeding.[17]

36 On the other hand, in Groningen, it seems that Gillard J would not have declined to grant the proposed declaratory relief on the basis that it was being sought in separate civil proceedings, had he otherwise thought it appropriate to do so on the facts.

37 And, in Hastings, the present plaintiff sought leave to commence a proceeding seeking mandatory injunctive and declaratory relief. The proposed declaration was to the effect that a prisoner's common law right of unimpeded access to the court encompasses having meaningful access to the means of producing court documents. Robson J refused to make a declaration in such broad terms, but granted leave which was limited to seeking such declaratory relief in relation to the hearing of three substantive applications which the plaintiff proposed to commence.

38 In the Hastings appeal, the Court of Appeal rejected the Commissioner's application for leave to appeal Robson J's decision. However, they did so on the basis that the plaintiff amend his proposed form of relief to seek the following declarations:

(a) That the status of a prisoner as a vexatious litigant is not a relevant consideration in determining whether to grant the plaintiff access to an in-cell computer; and

(b) That in an application by a prisoner for access to an in-cell computer on legal grounds, it is not relevant whether the proposed or actual proceedings are civil as opposed to criminal.[18]

39 There was no suggestion in the reasons of the Court of Appeal that the right is not a right which is able to be asserted in a civil proceeding which is separate to the one in which the unfairness is alleged to be occurring.

40 However, as a matter of fact, the plaintiff has not persuaded me that this part of his proposed claim is not foredoomed to fail. That is to say, he has not established on the evidence that his access to courts is being impeded in the relevant sense, due to his lack of access to an in-cell computer.

41 The plaintiff has no criminal proceeding currently on foot. Apart from this proceeding, in paragraph [49] of his February affidavit, the plaintiff deposed that he was self-represented in one other Supreme Court proceeding (being the proceeding issued pursuant to the leave granted in Hastings) and four FOI appeals in VCAT. By the time of his April affidavit, he deposed that he was self-represented in four Supreme Court proceedings and one VCAT proceeding, and legally-represented in another VCAT proceeding.

42 The plaintiff submits that an in-cell computer is needed, so that he is able to:

(b) Draft other court and tribunal documents, including affidavits;

43 The plaintiff complains of difficulties experienced due to lack of an in-cell computer, in particular, having to draft almost all court documents twice. The documents are first handwritten during his time in his cell, then subsequently typed during his limited library hours. Any errors in the typed draft cannot be rectified until his next allocated library session, which could involve a delay of one to three days.

44 I find that the plaintiff has not established an arguable case that he has been denied unimpeded access to the courts, in the relevant sense. Whilst it would undoubtedly be more convenient for him to have access to an in-cell computer, the plaintiff's own evidence demonstrates that he has in fact been able to access the courts. For example, he has been able to prepare numerous legal submissions and voluminous affidavits, and has sought and been granted extensions of time in several proceedings, when required by him.

45 For all these reasons, I would deny the plaintiff leave to issue the proposed proceeding on the basis that the decision infringes his common law right of unimpeded access to the courts. But that is not the only basis on which he seeks leave to bring the proposed proceeding.**

**46 Section 47(1) of the Corrections Act sets out a number of rights which every prisoner has. Although s 47(1)(o) provides a right "to take part in educational programmes in the prison", there is no mention there (or elsewhere in the Corrections Act) of any right to access computers (let alone in-cell computers). I do not accept the plaintiff's argument that s 47(1)(o) creates any statutory right to access a computer.

47 However, s 47(2) provides that a prisoner's rights under s 47 are additional to, and do not affect, any other rights which a prisoner has under the Corrections Act or at common law.

48 Prisoner privileges are not granted under the Corrections Act itself. However, Part 7 of the Act does contain provisions dealing with the circumstances in which privileges may be withdrawn for prison disciplinary reasons. "Privilege" is defined in s 48 as "in relation to a prison means any of the privileges determined in accordance with the regulations for that prison".

49 Under s 112(a) of the Corrections Act, the Governor in Council has the power to make regulations with respect to "the privileges of prisoners".

50 Regulation 42 of the Corrections Regulations 2009 ("the Regulations") provides:**

(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.

**51 Exhibited to the February affidavit was a document entitled "List of privileges approved by Correctional Services Commissioner for male and female prisoners not on a restricted regime" ("the Privileges List"). The Privileges List is dated "to 31 December 2010" and appears to have been made under reg 42 of the Regulations.

52 There is no dispute that this is the relevant list of privileges, which applied to the plaintiff at the time of his application and the decision. However, there is a dispute as to whether access to an in-cell computer is included in the Privileges List at all.

53 The Privileges List states that "the following list of privileges applies in all prisons for all prisoners not on a restricted regime", and then lists 15 separate bullet points, most of which involve access to some activity or object.

54 The bullet point relating to computers says "access to computers or electronic games consoles and associated software". It makes no mention of whether that access is to be provided in-cell, out-of-cell, or both.

55 Unfortunately, the Privileges List has been inconsistent in its use of language to specify where a particular privilege may be exercised. For example, some privileges are said to be "out-of-cell", some "in-cell" and some "non-cell", whilst the rest are completely silent as to where the privilege may be accessed.

56 The proposed defendant argues that where the Privileges List is silent, it should be construed as referring only to "out-of-cell" access. The plaintiff argues to the contrary (or at least in the case of "computers or electronic games consoles").

57 Certainly, there are some activities on the Privileges List which appear, on their face, to only be capable of being exercised out-of-cell; for example "access to organized sporting or recreational activities." But many of the other privileges appear to be capable of being exercised both in-cell and out-of-cell.

58 Interestingly, the application form headed "Computer/Game Console Request" makes it perfectly clear that the computer which can be applied for using that form is an in-cell computer.

59 I note that the Privileges List is not the same document as the lists of privileges considered by Byrne J in Money,[19] Robson J in Hastings, or Mandie J in Rich v The Secretary.[20] That means that none of those cases has determined whether in-cell access to a computer was a privilege available at the time of the plaintiff's July 2010 application.

60 In Coulston, Williams J had before her a list of privileges which did list "access to computers or electronic games consoles". But it does not appear from her Honour's reasons that the self-represented prisoner in that case argued that the list should be construed so as to include access to in-cell computers.

61 In my opinion, it is at least arguable that the computer privilege in the Privileges List should be construed so as to include in-cell access.

62 The question which would then arise is: what is the proper legal characterisation of a "privilege"? Little time was spent addressing this issue, as the parties focussed on whether in-cell access was a privilege at all, within the meaning of the Corrections Act and Regulations. It seems to me to be at least arguable that, even though a privilege may impose no statutory duty on the proposed defendant to determine that the plaintiff be granted access to an in-cell computer, it might give rise to a legal entitlement to have one's eligibility for the privilege assessed in accordance with any relevant policy guidelines (including eligibility criteria) and/or in accordance with procedural fairness. At the very least, a privilege would be capable of giving rise to a legitimate expectation that such would occur.

63 From time to time, Corrections Victoria issues Commissioner's Requirements, which contain policy guidelines in relation to particular matters. The document relevant to this case has an issue date of May 2009, and the subject matter is "Prisoner Computers" ("the 2009 Commissioner's Requirement"). It relevantly provides:

To provide instructions for the policy and procedures, relating to the purchase or lease of personal computers for prisoners.

Corrections Victoria may allow prisoners to have a personal computer in their accommodation, where it can be demonstrated that there is a genuine educational or legal benefit to the prisoner or a positive contribution to the prisoner's sentence plan and rehabilitative need.

Prisoners' human rights are limited only to the extent that it is reasonably and demonstrably justifiable. All staff must act compatibly with human rights and consider human rights when making decisions.

Prisoners' access to computers must be strictly controlled and monitored and only given in circumstances that can balance and manage security and the purpose of access to a computer (eg to prepare for a trial or if necessary for education). Access is subject to a prisoner's use of their in-cell computer in a manner which does not prejudice the security or good order of the prison ...

Prisoners making application ... must be eligible under at least ONE of the following criteria:

The prisoner ... has an outstanding legal matter or outstanding appeal and requires a computer to assist in the preparation of their case/defence.

The prisoner has approval to engage in an education program, either full-time or part-time, for which access to an in-cell computer is required. Documentation from the education provider is required to substantiate the prisoner's application for computer equipment (for example, proof of enrolment, reason for in-cell computer and duration of course) and period of approval for in-cell computer access.

64 In Money, Byrne J found that access to an in-cell computer was not included in the list of privileges which he was considering. He therefore went on to consider the legal status of the 2003 Commissioner's Requirement, which was before him. He commented:**

Nevertheless, prisoners may be permitted to have an in-cell computer as part of the general administration of their custody. It is important for present purposes that I observe that permission to purchase a computer and to have it in the cell is not a right in any sense of the word. It is more to the nature of an indulgence which may be accorded a prisoner where this is considered appropriate.[21]

**65 Even though relief in the nature of certiorari was not sought in Money, Byrne J nevertheless briefly considered an argument based on legitimate expectation, but held it was foredoomed to fail because he was satisfied in that case that the plaintiff's application had been dealt with in accordance with procedural fairness.[22] That is to say, even in the case of a mere "indulgence", there could be a legitimate expectation of procedural fairness in the decision-making process.

66 In Coulston, the prisoner had only sought mandamus, and injunctive and declaratory relief. As the prisoner was unrepresented, Williams J considered the evidence as if the prisoner had also sought relief in the nature of certiorari. Her Honour held that there was a legitimate expectation of receiving procedural fairness at the hearing of the panel which determined the prisoner's application for in-cell computer access.

67 However, her Honour was dealing with the final hearing of the prisoner's application, not an application for leave to commence a proceeding. Accordingly, she had before her evidence from the relevant corrections personnel, which explained the panel's reasoning process. On the evidence before her, she held that procedural fairness had in fact been accorded to the applicant in that case.

68 I am satisfied that it is at least arguable that the Privileges List and/or the Commissioner's Requirement gives rise to a legitimate expectation (if not also a legal entitlement) to have the plaintiff's application considered in accordance with the relevant policy guidelines, including eligibility criteria. At the very least, there is a legitimate expectation of receiving procedural fairness in the making of the decision.

69 Unlike Coulston, there is no evidence before me which explains the proposed defendant's reasoning process, apart from the reasons themselves. Many of those matters will be known to the proposed defendant, but are not necessarily able to be readily put into evidence by the plaintiff on an application such as this.

70 The proposed defendant chose to put no material before the court to explain his reasoning process or the background to the decision,[23] and neither his written or oral submissions sought to specifically address the plaintiff's procedural fairness and certiorari arguments.

71 The plaintiff has raised a number of matters which are not foredoomed to fail, namely the matters raised in paragraph 2 of the originating motion, excluding paragraph 2(c). It is not possible on the material before me to currently evaluate the plaintiff's ultimate prospects of success on each of those grounds, but I will make the following observations.

72 On the face of the plaintiff's application, he appears to satisfy one or more of the eligibility criteria. There is evidence before me that more than 300 other prisoners have applied for, and been granted, in-cell access to computers. I have not seen the application forms for those other prisoners, but it is hard to imagine that all 300 of them are parties to more litigation, or are enrolled in more courses, than the plaintiff, so as to have a more pressing "need" for computer access.

73 One of the matters of which the plaintiff complained in his July application, was that he had to share 4 working computers with more than 750 other prisoners. In the decision, one of the grounds of refusal of access was that "the number of computers has been increased for the use of all prisoners." However, the evidence before me suggests that only one more computer had been provided at that time, for the use of the general prison population. How the provision of one additional computer for more than 750 prisoners may have satisfied the plaintiff's access needs has yet to be explained.

74 The plaintiff is also in the very unfortunate position that decisions as to his in-cell computer access are made by persons who work for Corrections Victoria (or the Department of Justice), the opposing party in most of the proceedings in which he wishes to use the computer.

75 There are genuine issues to be explored as to whether the proposed defendant has had regard to irrelevant considerations, failed to have regard to relevant ones, demonstrated apprehended bias, applied an inflexible policy, or acted unreasonably or for an improper purpose. There is sufficient material before the court to justify granting leave to commence a proceeding, so that the issues can be fully ventilated and determined.

76 Just because the plaintiff is a prisoner, and has been declared a vexatious litigant, it does not mean that the proposed defendant is not obliged to afford him procedural fairness in arriving at the decision, or that the plaintiff does not have a legitimate expectation (if not also a legal entitlement) to have his application considered in accordance with the relevant policy guidelines, including eligibility criteria.

77 In considering the plaintiff's application for leave to commence a proceeding, I have borne in mind that the plaintiff appeared in person and was not legally represented. I have therefore focussed more on the substance of his application, than the precise form.

78 The proposed defendant argues that leave should be refused on discretionary grounds, because the plaintiff has previously brought two other proceedings seeking in-cell computer access. But, as explained earlier, those cases involved different lists of privileges and different Commissioner's Requirements, and sought different relief, to this case. The proposed proceeding is not unjustifiably vexatious or oppressive, so as to constitute an abuse of process. And, if fresh decisions are made, based on relevantly different documents or factual circumstances, leave should not be refused on a discretionary basis simply because earlier applications for leave have been made.

79 I have no doubt that the plaintiff's pursuit of multiple proceedings against Corrections Victoria and its officers is a considerable irritant to those persons, and occupies a disproportionate amount of their time and energy. That may at times lead them to make decisions that themselves result in more proceedings, or prolonged proceedings, or the expenditure of more time and money.

80 For example, it appears that in the Hastings case, the plaintiff sought in his submissions to raise the question of judicial review before Robson J. It appears from his Honour's reasons that the defendant objected, and insisted that the application be restricted to the injunctive and declaratory leave sought in the originating motion in that case.[24] Had judicial review grounds been argued in that case, it is possible that this current application may not have been necessary.

81 I also note Maxwell P's observation in the Hastings appeal:

Finally, since I have concerns about the pressures on this Court and the trial Court, I cannot refrain from making the following comment. It seems surprising that what on the face of it would appear to be a relatively minor issue of access to computer facilities should have required a full dress application for leave to appeal such as this. I would have thought there were more significant matters of prison administration to which such litigation effort and public resources would be directed. Of course, every person has a right to challenge decisions. But if, in the end, this is about ensuring that a prisoner, like any other citizen, can properly exercise the rights which as a vexatious litigant the Supreme Court Act 1986 confers on him, then it may be that now is the time for some reconsideration.[25]

82 There is sufficient material before the court to justify the granting of leave to issue the proposed proceeding. Whether the plaintiff will ultimately succeed will depend on the evidence that is ultimately led. But I am satisfied that the proposed proceeding is not foredoomed to fail, and is not otherwise an abuse of process. I am also not persuaded that there is any discretionary basis for refusing to grant leave.

83 Accordingly, I will grant leave to commence a proceeding seeking relief substantially in the form set out in paragraph 2 of the originating motion, excluding sub-paragraph 2(c) thereof.[26]

84 Finally, I note that the plaintiff has stated that he proposes to be legally represented at the hearing of the proposed proceeding. I suggest it would be in everybody's interests for him to seek such legal representation as soon as possible, not simply for the hearing itself.**

I certify that this and the 20 preceding pages are a true copy of the reasons for judgment of Hollingworth of the Supreme Court of Victoria delivered on 7 July 2011.

[2] Attorney-General for the State of Victoria v Knight [2004] VSC 407.

[3] The plaintiff's previous applications were made on the following dates: 23 August 2006, 25 October 2006, 14 July 2008, 6 January 2009, 6 March 2009, 25 March 2009, 12 August 2009, 8 December 2009, 8 April 2010 and 18 May 2010. For some background to the earlier applications, see Knight v Hastings [2010] VSC 99 at [27]- [78].

[4] [2009] VSC 242 ("Money").

[5] [2010] VSC 99 ("Hastings").

[6] [2010] VSCA 203 ("the Hastings appeal").

[7] [2006] VSCA 21; (2006) 14 VR 538 ("Phillip Morris").

[10] Hastings, Knight v Anderson [2009] VSC 607 ("Anderson").

[12] The other proceeding related to the sale of tobacco products in prisons, and was unrelated to the subject matter of the proposed proceeding in this case.

[13] [2010] VSC 135 ("Coulston").

[14] Raymond v Honey [1983] 1 AC 1; Rich v Groningen (1997) A Crim R 272, 287-288 ("Groningen"); R v Secretary of State for the Home Department; ex parte Leech (No 2) [1993] EWCA Civ 12; [1994] QB 198 at 216.

[17] Smith v Corrective Services [1978] 1 NSWLR 317 per New South Wales Court of Appeal, cited with approval by Mandie J in Rich v Secretary to the Department of Justice [2007] VSC 405 at [22]- [24] ("Rich v The Secretary").

[19] The list of privileges before Byrne J was the list that applied in 2008 and 2009; it made no mention at all of access to computers.

[20] Mandie J was considering the 2007 list of privileges, which apparently also made no mention of computers.

[23] I am not suggesting he was obliged to do so, but it was a choice that was open to him.

[26] Sub-para 2(c) relates to the argument about unimpeded access to the courts.

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