Proposed Applicant v Proposed Respondent

1 Julian Knight ('Knight') is serving a sentence of life imprisonment for murders committed on 9th August 1987. On 19 October 2004, orders were made declaring him a vexatious litigant for a period of 10 years pursuant to s 21 of the Supreme Court Act 1986 (the 'Supreme Court Act').

2 An application for an extension of those orders was made pursuant to the Vexatious Proceedings Act 2014 (Vic) ('the Act'). The orders made on 19 October 2004 were extended pending final determination of the application under the Act. By orders of J Forrest J on 30 August 2016, Knight was declared subject of a general litigation restraint order pursuant to s 29 of the Act.[1] That order is of indefinite duration.

3 Being subject to a general litigation restraint order, Knight is required to apply to the Court for leave in accordance with s 54 of the Act before commencing any proceeding. During the 15 years that Knight has been subject to restraint as a vexatious litigant he has made 76 such applications.[2]

4 In this application Knight wants to initiate a civil claim for damages for personal injury from unlawful assault and battery. The assaults are said to have been committed on him by prison officers during his reception to the prison system on 11th and 17th August 1987. He seeks to bring proceedings against three individual prison officers and against the State of Victoria as being vicariously liable for the actions of the individual officers.

5 The intentional torts for which Knight wishes to sue were subject to a limitation period which required a commencement of proceeding within six years by operation of s 5 of the Limitation of Actions Act 1958 (Vic) (the 'Limitations Act'). In 2003 amending legislation inserted a new Part IIA to the Limitations Act. It provided a new limitation regime for personal injury actions. The introduction of s 27D(1) provided that an action shall not be brought after the expiration of either a three year limitation period, calculated 'from the date on which the cause of action is discoverable by the plaintiff'[3] or the period of 12 years from the date of the act or omission alleged to have resulted in the personal injury,[4] whichever expires first. The provisions of Part IIA apply to causes of action accruing prior to its introduction, unless proceedings were on foot by 1 October 2003.

6 All possible limitation periods have well and truly passed.

7 Knight seeks leave to obtain an extension of the time to commence his damages proceeding. Although he describes this as an application pursuant to s 23A(2) of the Limitations Act_,_ as set out above any such extension must now be made pursuant to s 27K of the Limitations Act. The submissions canvassed both s 23A and s 27. I have approached the question of this application on the basis that any approved proceeding would be an application under s 27K of the Limitations Act. The considerations and approach are broadly similar to that set out in s 23A. The application is supported by an affidavit sworn by Knight dated 4 April 2019.

8 The decision to grant leave to a vexatious litigant under s 54 of the Act is discretionary. Section 55 provides that:

...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.

It is the extension application rather than the underlying damages proceeding that is to be considered. Therefore I must be satisfied both that the extension of time is not vexatious and that there are reasonable grounds for the extension application.

9 Certain matters must be disclosed in the application pursuant to s 56 of the Act. Those matters are:

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

(b) the 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 made or proceeding commenced or conducted by the person -

(a) that is a vexatious application or vexatious proceeding; or

(b) which has been stayed or dismissed on the basis of being made, commenced or conducted without merit;

(d) an explanation as to how the application for leave to proceed is materially different to each application referred to in paragraph (a), (b), (c), (if any);

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

(2) A disclosure under sub-section (1) must be made by affidavit unless the Rules of Court or the Rules of the Tribunal otherwise provide or the Victorian court or tribunal otherwise orders.

Disclosure under s 56(1) (a) to (e) of applications made

10 The affidavit in support lists applications for leave made during the currency of the orders made under the Supreme Court Act and then those applications made whilst Knight is subject to a general litigation restraint order under the Act to date. The affidavit deals with applications under s 56 that have been determined favourably or unfavourably as set out from paragraphs 7 to 211 and 223-224. These total 38 applications. The total does not include applications withdrawn or discontinued without determination.

11 The affidavit then sets out what are described as current proceedings not yet determined. There are six. They include three matters said to be listed for trial in May 2018,[5] a second application to Victims of Crime Assistance Tribunal yet to be determined[6], two applications not yet accepted for filing, and a new application agitating access to computer facilities. The affidavit does not adequately disclose the current status of the outstanding proceedings that are described as being listed for hearing some eleven months before the affidavit was sworn. However, the submissions received updated the position regarding outstanding applications.

12 None of the previous applications seek leave to commence a damages proceeding or to extend time to do so or otherwise deal with the subject matter of this application.

13 I am satisfied that disclosure has been made of the necessary matters in compliance with s 56.

Are there reasonable grounds for the application to extend time?

14 Applications to extend time are provided for pursuant to s 27K of the Limitations Act which states:

(1) A person claiming to have a cause of action to which this Part applies may apply to a court for an extension of a period of limitation applicable to the cause of action under Division 2.

(2) Subject to section 27L, the court-

(a) may hear any of the persons likely to be affected by the application as it sees fit; and

(b) may, if it decides that it is just and reasonable to do so, order the extension of the period of limitation applicable to the cause of action for such period as the court determines.

15 Section 27L provides a non-exhaustive list of matters to be considered in determining applications for an extension of the limitation period as follows:

(1) In exercising the powers conferred on it by section 27K, a court shall have regard to all the circumstances of the case, including (but not limited to) the following -

(a) the length of and reasons for the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;

(c) the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;

(d) the duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability;

(e) the time within which the cause of action was discoverable;

(f) the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;

(g) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received.

(2) To avoid doubt, the circumstances referred to in subsection (1) include the following -

(a) whether the passage of time has prejudiced a fair trial of the claim; and

(b) the nature and extent of the plaintiff's loss; and

(c) the nature of the defendant's conduct.

16 The discretion to extend time can be exercised even though the time period has already expired.[7]

17 The affidavit in support details the assaults which are alleged to have occurred on 11th and 17th August 1987 on reception into H Division at Pentridge Prison. The assaults are described as a 'reception bash'. The experience on the first occasion, 11 August 1987, is described at length at paragraphs 261 to 278 of the affidavit. The second occasion on 17 August 1987 is described only to say that the "reception on this occasion was almost identical to the reception I had receive d [sic] on 11 August 1987"[8]. The description is prefaced by a long dissertation on the history of Pentridge prison and of H division specifically which have no relevance to the application.

18 The affidavit does not in any way identify the specific acts of the second, third or fourth defendants, whose acts are said to be those for which the state is vicariously liable. The description of the events detailed in paragraphs 261-278 and 280 is striking by the absence of any identification of any of the particular prison officers involved, let alone pinpointing the acts alleged against the named individual defendants. On the material disclosed, any action for assault or battery by the second, third or fourth defendants is doomed to fail as would be any claim based upon vicarious liability for their actions.

19 The affidavit also sets out a number of steps taken by Knight since 1987 to document his experiences of a 'reception bash' and to make complaint about the conduct. This has included:

(a) giving evidence at a hearing before the Administrative Appeals Tribunal constituted by Judge David Jones in February 1989;[9]

(b) writing to the Officer-in-Charge of Prison Liaison Squad by letter dated 30 March 1994 detailing the assaults;[10]

(c) typing case notes in relation to the assaults on 11 and 17 August 1987 which were sent by letter and provided at a meeting with DSC Paul in July 1994 to the Prison Liaison Squad;[11]

(d) deposing to a letter from DSC Paul dated 8 September 1994 which noted that [Knight] was 'aware that many of the assaults are minor and outside the statute of limitations period';[12]

(e) providing medical authorisation for the prison hospital to provide access to prison medical files to the Prison squad where the prison medical file did not seem to contain evidence in support of the allegations;[13]

(f) receiving advice at a meeting in April 1996 with DSS Morrish that the assaults were of a trivial nature and considerable time and resources would be needed to investigate them. He was told that there would be no further investigation of the allegations of assault. The content of that meeting was confirmed by a letter of DSS Morrish dated 9 April 1996 to DI John Kapetanovski of the Special Response Squad.[14]

20 None of the documents referred to above in (a) to (f) were put before the Court.

21 In 2013 Knight posted an account of his experiences on a website.

22 Knight's affidavit of April 2019 goes on to describe the experiences of other prisoners and outlines a number of published accounts of H division both historic and fictional including some publications in which Knight's account of his experiences is included.

23 The affidavit material disclosed by Knight does not address the factors that might be relevant to a discretion to extend time. It does not provide any explanation for the length and reason for a delay of 32 years in accordance with s 27L(1)(a). The material that is disclosed incorporates references to knowledge of the existence of a time limit as early as 1994. It advances no explanation for delay in the face of this information.

24 However the submissions did address the reasons for the delay and I have considered those reasons. Knight submitted first that he chose not to bring a proceeding while he remained in prison because he was at risk of official or unofficial reprisals should he take legal action for damages. Second he submitted that he had a legitimate expectation of release on parole in 2014 after serving his minimum term and so chose not to commence proceedings while incarcerated. With the legislative amendment to the Corrections Act in 2014,[15] he submits he is now not eligible to be considered for parole unless he is at imminent danger of dying or is seriously incapacitated. He submits that had he known in 1987 that he would not be released from custody then he would have commenced proceedings within the required period.

25 The two explanations are somewhat at odds with each other. The decision taken to await the end of a lengthy time of incarceration, whatever its reason, was a deliberate decision and maintained with the knowledge of expiry of the relevant time limits. The fear of reprisals is certainly a relevant explanation for delay on the part of the applicant. However, in the face of various complaints made about the conduct (as set out in paragraph 19 above) which brought to the attention of prison authorities the allegations of assaults, the explanation may well be less persuasive as time passes. Both explanations are described as matters of conscious choice.

26 The question of any prejudice to the defendant relevant to s 27L(1)(b) was also not canvassed in the affidavit. Whilst the prison did not investigate the complaints as requested in 1994 and 1996, there is no identification of particular facts within its knowledge that were not made available to Knight as contemplated by s 27L(1)(c), relevant to his decision to attempt to bring an action for damages.

27 Knight's submissions raise the issue of prejudice to the defendant. He submits that any prejudice is equally likely to affect him and that prejudice to a plaintiff is not a relevant factor. It is impossible to predict what the proposed defendants might say as to prejudice. There may or may not be specific prejudice. There may be no more than the general prejudice that arises simply by the effluxion of time. At this point, I am required to assess 'reasonable prospects' without knowing what the proposed defendants might put before the Court on the question of prejudice. I have therefore approached the question of prospects on the basis, favourable to the proposed plaintiff, that there will be some general prejudice by effluxion of time only, but no specific prejudice to the proposed defendants that might adversely affect his prospects of success.

28 There is no information outlining the nature of any injury sustained as a result of the alleged assaults. In fact, the affidavit deposed to the absence of any record of injuries that might be consistent with the alleged assaults in the prison hospital records which works against the applicant. In an action for assault and battery, damages may be awarded even in the absence of proof of any actual damage. The absence of any sustained injury and the prospect of an award of nominal damages only would be relevant in determining whether it is just and reasonable to extend time and therefore are a consideration as to whether there are reasonable grounds for a proceeding to extend time.

29 Section 27L(2)(b) requires consideration to be given to the nature and extent of the plaintiff's loss. Therefore the nature and extent of injury caused by the assaults is relevant. The failure to identify any persisting or even immediate physical or psychiatric injury stemming from the intentional torts sought to be relied on is likely to be a significant factor in the exercise of any discretion to grant leave.

30 There is nothing to suggest that any information has only recently become available so that the right to seek relief from the court was not known earlier. Prompt action upon receipt of relevant information is relevant pursuant to s 27L(1)(f). The timing of the application, two years after the validity of the 2014 legislative amendments to the Corrections Act were determined does not suggest prompt action.

31 Knight does not rely on any medical, legal or other expert advice to inform his actions as might be relevant under s 27L(1)(g). He is in this, as in his other applications, self-represented. There is no evidence that he is or was at any relevant time under a disability or legal incapacity as contemplated by s 27L(1)(d).

32 There is nothing to indicate that the cause of action was discoverable at any time later than on the occurrence of the assaults as alleged relevant pursuant to s 27(1)(e).

33 Knight has referred in submissions to many cases where extensions were granted and others that were refused after substantial delay. Length of delay is but one factor in a synthesising exercise drawing on multiple considerations.[16] In this case the absence of significant injury and the deliberate character of a continuing decision not to take legal action in my view make the prospects of success in obtaining an extension of time at their highest borderline. In those circumstances I am not satisfied that the proposed application has reasonable prospects of success.

34 Given my finding on the prospects of success, it is not necessary for me to determine whether the application is vexatious. I accept that seeking an extension of time is not vexatious merely because the length of time is significant. I also accept that the underlying proceeding seeking damages for an intentional tort is not in principle, vexatious.

35 On the basis that the application to extend time does not have reasonable prospects of success, I am not satisfied that the requirements of s 55 of the Act are met and so do not grant leave.

[1] Attorney-General for the State of Victoria v Knight [2016] VSC 488.

[2] The prior applications made by Knight are 76 in total comprised of 46 applications in the tables appended to the Judgment of J Forrest J in Attorney-General for the State of Victoria v Knight [2016] VSC 488 as well as 21 other applications in proceedings commenced prior to Judgment in Attorney-General for the State of Victoria v Knight [2016] VSC 488 that were administratively disposed of without determination, as well as 9 applications brought by Knight since the Judgment in Attorney-General for the State of Victoria v Knight [2016] VSC 488, which are either dismissed, or yet to be determined.

[3] Limitation of Actions Act 1958 (Vic) s 27D(1)(a).

[4] Ibid s 27D(1)(b).

[5] S CI 2013 2043 Knight v Adult Parole Board; S CI 2013 2362 Knight v Wilson; S CI 2013 6673 Knight v Adult Parole Board.

[6] S CI 2016 00387 'In the matter of an application by Julian Knight', the first application having been refused leave by Keogh J in March 2017, see Knight v Victims of Crime Assistance Tribunal [2017] VSC 133.

[7] Limitations Act (n 3) s 27M(1)(a).

[8] Affidavit of Julian Knight (In support of application for leave) dated 4 April 2019, filed in proceeding S ECI 2019 02072 ('Affidavit of Julian Knight') [280].

[9] Affidavit of Julian Knight (n 8) [287].

[14] Affidavit of Julian Knight (n 8) [300] - [301].

[15] Corrections Amendment (Parole) Act 2014 (Vic).

[16] As required in any application to extend time Tsiadis v Patterson [2001] VSCA 138; (2001) 4 VR 114.