Proposed Plaintiff (Applicant for leave) v Proposed Defendant

1 On 19 October 2004, Smith J made an order under s 21(3) of the Supreme Court Act 1986 (Vic) that Mr Knight must not, without the leave of the Court, commence a legal proceeding within 10 years. Section 21(4) provides that leave must not be given unless the Court is satisfied the proposed proceeding would not be an abuse of process.

2 Mr Knight now seeks leave to commence a proceeding for an order in the nature of mandamus requiring the Commissioner for Corrections to comply with what he says is the statutory obligation to carry out a classification review and formulate a Sentence Management Plan for him.

3 Mr Knight submits that there has been no review and there has been no formulation of a Sentence Management Plan for the purposes of s 47(1)(l) of the Corrections Act 1986 (Vic) and regulations 22 to 23, and 25 to 26 of the Corrections Regulations 2009 (Vic) (the '2009 Regulations'). He submits that the decision of the Major Offenders Review Panel made in respect of him on 29 November 2010 does not meet the statutory obligations referred to.

4 In an application such as this, the onus is on the applicant to satisfy the Court.[1] In considering whether a proceeding would be an abuse of process, it is relevant to consider its prospects of success, but only in a limited fashion. The issue is whether the proceeding is foredoomed to fail, not whether it has reasonable grounds.[2] I am therefore concerned with whether Mr Knight's proposed proceeding would be foredoomed to fail or whether it could constitute some other recognised form of abuse of process.

5 As Bell J said in Knight v Anderson,[3] if the Court decides a proceeding would not be an abuse of process because it would not be foredoomed to fail, it cannot treat an absence of reasonable grounds as a discretionary reason to refuse leave. The Court's discretionary power to grant a vexatious litigant leave to commence any legal proceedings is enlivened only if the Court is satisfied that the proceedings are not or will not be an abuse of process of the Court.

6 In this case, the requirement to review classification annually and to formulate a sentence management plan for each prisoner are duties imposed by the Corrections Act and/or the 2009 Regulations. The 2009 Regulations, which impose requirements in relation to sentence management plans and reviews of classification, are new and, so far as I am aware, untested. What is now involved in a classification review and what is required in respect of the content of a sentence management plan as a result of the new regulations remains to be authoritatively determined.

7 In the circumstances, I do not consider that the proposed proceeding is foredoomed to fail. Nor do I consider that the proceeding would be unjustifiably vexatious and oppressive for the reason that Mr Knight now seeks to litigate a case that has previously been litigated. The 2009 Regulations are relatively new, and they impose particular obligations in relation to the preparation of sentence management plans for prisoners.

8 I am therefore satisfied that the proposed proceeding would not be an abuse of process.

9 As to discretionary considerations, there are no sufficient discretionary reasons to refuse leave in relation to the proposed proceeding. Given that the merits of Mr Knight's application, and relevant discretionary considerations, will be the subject of the hearing of his substantive application, it is inappropriate to say anything further.

10 Mr Knight's application for leave to commence the proceeding against the Commissioner in terms of paragraph 4 of his amended originating motion dated 21 January 2011 is granted.

[1] Phillip Morris Ltd v Attorney-General (Vic) [2006] VSCA 21; (2006) 14 VR 538, 562.

[3] [2007] VSC 278.