Proposed Plaintiff v Proposed Defendant

Supreme Court of Victoria|2012-10-31|Before: KYROU J

PRACTICE AND PROCEDURE - Vexatious litigant - Prisoner - Application for leave to commence a proceeding for judicial review of a decision to refuse permission to purchase an in-cell computer - Whether the proposed proceeding will be an abuse of the process of the Court - Leave refused - Supreme Court Act 1986 s 21(4).

1 This is an application by Julian Knight ('Proposed Plaintiff') for leave to commence a proceeding as a consequence of being declared a vexatious litigant under s 21 of the Supreme Court Act 1986 ('Act').[1] The Proposed Plaintiff is currently a prisoner at Port Phillip Prison serving a life sentence. He is not eligible for parole until 2014.

2 The Proposed Plaintiff has been attempting to obtain permission from Corrections Victoria to purchase and maintain a computer in his cell for a number of years. According to the Proposed Plaintiff, since 23 August 2006, he has made 13 applications for access to an in-cell computer, all of which have been refused.

3 The Proposed Plaintiff has brought three previous applications in this Court, seeking leave to challenge earlier decisions by Corrections Victoria to refuse him access to an in-cell computer.[2] These applications are summarised at [6] to [20] below.

4 By an originating motion and a statement of claim, both dated 5 October 2012, the Proposed Plaintiff has applied, pursuant to s 21(4) of the Act, for leave to commence a proceeding ('Proposed Proceeding') in this Court, against Rodney Wise, the Deputy Commissioner of Corrections Victoria ('Proposed Defendant'). The Proposed Defendant has not consented to the application. He appeared at the hearing of the application in the Practice Court on 11 October 2012 in order to assist the Court, but did not make any substantive submissions.

5 Section 21(4) of the Act precludes this Court from granting the application for leave to commence the Proposed Proceeding unless the Court 'is satisfied that the Proposed Proceeding ... will not be an abuse of the process of the Court'. As I am not so satisfied, the application will be dismissed.

The Proposed Plaintiff's previous applications for access to an in-cell computer

6 In Knight v Money,[3] Byrne J refused leave to commence a proceeding against the then Acting Assistant Commissioner of Corrections Victoria seeking (among other things) relief in the nature of mandamus. His Honour observed 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.[4]

7 Byrne J found that the decision in question was not amenable to mandamus, because a prisoner did not have a legal right and Corrections Victoria did not have a legal duty to permit prisoners to purchase a computer or to have it in their cell.[5] His Honour concluded that, even if mandamus were available, there was no substance in any of the proposed grounds of review.[6]

8 In Knight v Hastings,[7] the Proposed Plaintiff applied for leave to commence a proceeding seeking a mandatory injunction requiring the proposed defendants to approve his applications for access to a personal in-cell computer, and to supply that computer, prior to the hearing of three substantive applications. The Proposed Plaintiff also sought a declaration that a prisoner's common law right of unimpeded access to the courts encompasses having meaningful access to the means of producing court documents.

9 Robson J held that the Proposed Plaintiff had not satisfied the Court that an application for a mandatory injunction would not be foredoomed to fail. His Honour found that there was no evidence that the refusal of the relevant authorities to permit the Proposed Plaintiff to have a personal in-cell computer had interfered or would interfere with or impede his common law right of unimpeded access to the courts in relation to the proposed three substantive applications. Furthermore, his Honour found that the right of access could be exercised by means that did not necessarily involve the grant of the Proposed Plaintiff's application for the use of an in-cell computer during the preparation and hearing of the substantive applications.[8]

10 In relation to the Proposed Plaintiff's application for declaratory relief, Robson J stated that the history of the Proposed Plaintiff's applications raised some important issues relating to the existing criteria applied to applications for in-cell computers, the relevance of the Proposed Plaintiff being a vexatious litigant and the fact that the Proposed Plaintiff's proceedings were to be against the prison authorities.[9] In his Honour's opinion, it could not be said that the Proposed Plaintiff's application for a declaration that a prisoner's common law right of unimpeded access to the courts encompasses having meaningful access to the means of producing court documents, was foredoomed to fail.[10]

11 Robson J granted leave to the Proposed Plaintiff to commence proceedings on the conditions that they: (a) be limited to seeking such declaratory relief before and for the sole purpose of the hearing of the three substantive applications; and (b) rely solely on the ground of the common law right to unimpeded access to the courts.[11]

12 The Court of Appeal refused an application by Corrections Victoria for leave to appeal against Robson J's decision.[12] The Court of Appeal's decision was made subject to the Proposed Plaintiff confining his application to a declaration that his status as a vexatious litigant is not a relevant consideration in determining whether to grant him access to an in-cell computer.[13]

13 In the Court of Appeal, Maxwell P made the following concluding comment:

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 (Vic) confers on him, then it may be that now is the time for some reconsideration.[14]

14 The Proposed Plaintiff did not commence a proceeding seeking the limited declaratory relief set out at [12] above. Instead, he pursued a separate request dated 15 July 2010 for permission to purchase an in-cell computer.

15 In Knight v Wise,[15] the Proposed Plaintiff applied for leave to commence a proceeding against the Deputy Commissioner of Corrections Victoria, intending to seek: (a) an order in the nature of certiorari, quashing the decision dated 23 December 2010 to deny his application for access to an in-cell computer dated 15 July 2010; and (b) an order in the nature of mandamus, requiring the Deputy Commissioner to reconsider the Proposed Plaintiff's application according to law.

16 The decision dated 23 December 2010 was very brief and did not provide detailed reasons for refusing the Proposed Plaintiff's application. The grounds upon which the Proposed Plaintiff relied to impugn that decision were: failure to take into account relevant considerations; breach of the Proposed Plaintiff's common law right of unimpeded access to the courts; breach of the bias rule of natural justice; acting pursuant to an inflexible policy; improper purpose; and Wednesbury unreasonableness. [16]

17 On 7 July 2011, Hollingworth J refused the Proposed Plaintiff's application for leave on one of the abovementioned grounds, namely, that the decision infringed his common law right of unimpeded access to the courts. Her Honour held that the Proposed Plaintiff had not established on the evidence that his access to the courts was being impeded, in the relevant sense, due to his lack of access to an in-cell computer.[17]

18 However, Hollingworth J was satisfied that it was at least arguable that the 2010 'List of privileges approved by Correctional Services Commissioner for male and female prisoners not on a restricted regime' and/or the Commissioner's Requirement entitled 'Prisoner Computers' dated May 2009 gave rise to a legitimate expectation (if not also a legal entitlement) to have the Proposed Plaintiff's application considered in accordance with the relevant policy guidelines, including eligibility criteria. According to her Honour, at the very least, there was a legitimate expectation of receiving procedural fairness in the making of the decision.[18]

19 Hollingworth J found that there were genuine issues to be explored as to whether Corrections Victoria 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 was sufficient material before the Court, according to her Honour, to justify granting leave to commence a proceeding, so that the issues could be fully ventilated and determined.[19]

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.[20]

21 The Proposed Plaintiff commenced a proceeding pursuant to the leave granted by Hollingworth J. At the hearing of the proceeding by Dixon J on 27 March 2012, Corrections Victoria conceded that it had not complied with the hearing rule of natural justice and persuaded his Honour to make an order setting aside the decision dated 23 December 2010 and remitting the matter to Corrections Victoria for re-determination, without deciding the other grounds of review.

22 Pursuant to Dixon J's order dated 27 March 2012, Corrections Victoria prepared a proposed decision dated 24 April 2012 refusing the Proposed Plaintiff's application for an in-cell computer ('Proposed Decision'), and provided it to the Proposed Plaintiff for his comments. The present application, which is dated 5 October 2012, relates to the Proposed Decision.

23 The Proposed Decision is six pages in length and contains very detailed reasons for refusing the Proposed Plaintiff's application. The Proposed Defendant listed the documents that he took into account in making the decision as follows:

[The Proposed Plaintiff's] original application, dated 15 July 2010;
[The Proposed Plaintiff's] subsequent application, dated 8 February 2012;
[The Proposed Plaintiff's] letter to [the Proposed Defendant] dated 7 August 2011;
[The Proposed Plaintiff's] affidavit filed in ... proceeding [S CI 2011 5429] and proceeding S CI 2011 00836;
The judgment of Hollingworth J in Knight v Wise [2011] VSC 313;
The transcript of the hearing before Dixon J on 27 March 2012;
[The Proposed Plaintiff's] letter to [the Proposed Defendant] dated 28 March 2012 and the ... letter from ... Kangan Institute and Certificate of results;
[The Proposed Plaintiff's] letter dated 20 March 2011 to the Acting Prothonotary, Supreme Court, in relation to the proceeding S CI 2011 00944 ...
The Commissioner's Requirement (CR) on Prisoner Computers, both as issued on May 2009, which applied to [the Proposed Plaintiff's] original application, and as issued on January 2011, in which the criteria are further elaborated.

24 The Proposed Defendant outlined the computer policy of Corrections Victoria in the following terms:

Corrections Victoria does recognise the benefits of prisoners accessing computers in prison. In some cases they are the only means by which necessary legal documentation can be accessed ...

Notwithstanding the undoubted benefits of computers to prisoners, when those computers are abused or misused they can also represent a significant risk to the security and good order of the prison. ...

The use of in-cell computers is ... less easily supervised than computers in communally used spaces within prisons.

For these reasons, [Corrections Victoria's] computer policy has been drafted in such a way as to limit the number of in-cell computers to cases where the use of a computer is necessary for educational purposes, for the preparation for a criminal trial, or where there is a compelling release-preparation need...

I do appreciate that some prisoners who have been granted access to in-cell computers may not, or may no longer, pass this test that the computer must be necessary ... I have consistently done two things - uniformly applied the criteria as set out in the [Commissioner's Requirement] in all those cases that have come before me, and given regular instructions to prison General Managers to ensure that computer access is reviewed by Review and Assessment Committees at their locations, and that the criteria are strictly applied in accordance with the [Commissioner's Requirement].

25 The Proposed Defendant then considered in turn the Proposed Plaintiff's three grounds on which he sought access to an in-cell computer, namely, educational, legal and reintegration needs. The Proposed Defendant stated that, in assessing the Proposed Plaintiff's application and the relevance of each of these grounds, he took into account the Proposed Plaintiff's current access to shared computers within the prison.

26 In relation to the education ground, the Proposed Defendant noted the extent of the Proposed Plaintiff's current education studies, and the opinion of Kangan Institute, where the Proposed Plaintiff is undertaking two subjects, that the Proposed Plaintiff would benefit from an in-cell computer given his education load. The Proposed Defendant stated that, in the light of his understanding that TAFE courses are predominantly teacher-led training and that out-of-classroom study is not expected, the Proposed Plaintiff's 'education workload would appear ... to be ... manageable with [his] current computer access'. The Proposed Defendant expressed the question that he was required to address as:

whether the demands on [the Proposed Plaintiff's] out-of-cell time allow so little opportunity to access shared prison computers that [the Proposed Plaintiff] need[s] to have access to an in-cell computer.

27 The Proposed Defendant formed the view that the Proposed Plaintiff's current work arrangements of approximately up to four hours per day allowed him a reasonable number of hours each weekday to access a shared computer, particularly relative to other prisoners.

28 In relation to the Proposed Plaintiff's legal ground for access to an in-cell computer, the Proposed Defendant noted that the Proposed Plaintiff has no outstanding criminal legal matters, but that he has some civil matters on foot. He expressed the view that 'in light of [the Proposed Plaintiff's] history of initiating civil proceedings it would be difficult to argue that [his] inability to access an in-cell computer has to date in any way impeded [his] access to the courts'. The Proposed Defendant took into account that Corrections Victoria may be regarded as being placed in a position of potential conflict if it was to determine whether or not to grant the Proposed Plaintiff access to an in-cell computer to better prepare for matters in which it is a named defendant. The Proposed Defendant also stated that:

if civil action against [Corrections Victoria] were to be regarded as justifying the grant of an in-cell computer in circumstances where access would not otherwise be justified, then a perverse incentive could exist for prisoners to initiate litigation against [Corrections Victoria].

29 In relation to the Proposed Plaintiff's reintegration ground, the Proposed Defendant referred to 'one long-term prisoner with significant learning difficulties' to whom access had been granted for an in-cell computer for the purpose of enhancing his poor literacy skills, with a view to increasing his capacity to obtain employment upon release. The Proposed Defendant said of the Proposed Plaintiff's circumstances:

I do not see that your circumstances meet the reintegration criteria. Given your proficiency on the computer, I do not believe that your employability upon release will be affected by your inability to access an in-cell computer. Neither do you need a computer to improve your communication skills, and you are not yet in the last 12 months of your sentence.

30 The Proposed Defendant rejected the suggestion that the Proposed Plaintiff had been 'singled out for special treatment' in relation to his in-cell computer application. The Proposed Defendant stated that since April 2009, there had been around 36 computer matters considered by the Major Offenders Review Panel, many of which had been either reapplications or reconsiderations of deferred cases; and that of the eight applications that were approved in that period, almost all were approved on the basis of the prisoners' outstanding criminal trials or appeals. According to the Proposed Defendant, the Proposed Plaintiff was one of 12 prisoners whose applications had been rejected in that period.

31 In the light of the above considerations, the Proposed Defendant concluded as follows:

[Y]our application for an in-cell computer does not meet the criteria. Taking into account the amount of time in which you may currently access prison computers, I am not of the view that access to an in-cell computer is justified by the demands of your educational and legal activities.

I therefore propose not to approve the application.

I am nonetheless mindful of the fact that you are nearing your parole eligibility date...

If you are transferred to a medium-security prison ... this change in security rating and placement may be relevant to any future decision on an in-cell computer application ...

32 It is not clear whether the Proposed Decision was followed by a final decision. The Proposed Plaintiff's originating motion and affidavit in support only refer to the Proposed Decision. I will assume, in the Proposed Plaintiff's favour, that the Proposed Decision became a final decision.

Present application for leave to seek review of the Proposed Decision

33 The Proposed Proceeding seeks the following relief:

The plaintiff seeks from the Court an order in the nature of certiorari quashing the defendant's decisions of 23 December 2010 & 24 April 2012 to deny the plaintiff's Application for Access to a Personal Computer submitted at Port Phillip Prison on 15 July 2010, on the ground that;

(a) The defendant's decisions to deny the plaintiff's application is an improper exercise of power as it was so unreasonable that no reasonable body would have reached it, given that;

(i) The decision is inconsistent with all other decisions of a like nature,

(ii) The decisions are inconsistent without any rational justification,

(iii) The plaintiff has a right at common law ... and pursuant to s 47(2) of the Corrections Act 1986 (Vic), of unimpeded access to the courts, which includes having meaningful access to the means of producing court documents,

(iv) The List of Privileges Approved by Correctional Services Commissioner for 2010 & the Approval of Annual List of Privileges 2012 issued by the Secretary to the Department of Justice on 11 March 2012 pursuant to regulation 42 of the Corrections Regulations 2009 (Vic), includes access to personal in-cell computers,

(v) The defendant applied supposed policy guidelines against the plaintiff and not against other comparable applicants without any rational justification, &

(vi) More than 300 applications by other prisoners have been approved even though they met less eligibility criteria than the applications made by the plaintiff.

The plaintiff seeks from the Court an order in the nature of a mandatory injunction ordering the defendant to permit the plaintiff to purchase a personal in-cell computer.[21]

34 It can be seen that the sole ground of review upon which the Proposed Plaintiff seeks to rely is Wednesbury unreasonableness. It is also apparent that the Proposed Plaintiff has applied for judicial review of the decision dated 23 December 2010 as well as the Proposed Decision. However, the present application can only extend to the Proposed Decision, as the decision dated 23 December 2010 was quashed by Dixon J on 27 March 2012.

35 On 1 August 2012, the Proposed Plaintiff served a subpoena on the Proposed Defendant requiring production of all current applications and supporting documentation for access to a personal computer filed with Corrections Victoria; and all documents concerning approvals for prisoner access to personal in-cell computers in Victoria's prisons granted since 23 August 2006. On 11 September 2012, the Proposed Defendant applied for an order setting aside the subpoena. Daly AsJ heard the application on 21 September 2012 and reserved her decision.

36 At the hearing of the present application in the Practice Court on 11 October 2012, the Proposed Plaintiff requested that a decision on the application not be delayed until after Daly AsJ decided whether or not to set aside the subpoena.

Section 21 of the Act

37 Section 21 of the Act relevantly provides:

21 Vexatious litigants

...

(2) 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 ...

(3) An order under subsection (2) may provide that the vexatious litigant must not without leave of -

(a) the Court; or

...

do the following -

...

(e) commence any legal proceedings (whether civil or criminal) in the Court or any specified inferior court or tribunal; ...

...

(4) Leave must not be given unless the Court ... is satisfied that the proceedings are not or will not be an abuse of the process of the Court ...

...

Principles for determining leave applications under s 21(4) of the Act

38 The power to grant leave under s 21(4) of the Act is enlivened only if the Court is satisfied that the proposed proceeding is not or will not be an abuse of process of the Court.[22] The onus rests on the applicant for leave to establish that the proceeding will not be an abuse of process.[23]

39 The meaning of 'abuse of process' under s 21(4) of the Act was considered by the Court of Appeal in Phillip Morris Ltd v Attorney-General (Vic).[24] The Court cited with approval[25] the following examples of what may constitute an abuse of process provided by Mason CJ, Deane and Dawson JJ in Walton v Gardiner:[26]

(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.[27]

40 On an application such as the present, in considering whether the power to grant leave has been enlivened, it is ordinarily not practicable to decide questions of substantive fact, but that rule is subject to exceptions in appropriate circumstances.[28]

41 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.[29]

42 Once enlivened by a finding that a proposed proceeding would not be an abuse of process, the power to grant leave under s 21(4) of the Act is discretionary.[30] The matters relevant to the exercise of the Court's discretion have not been exhaustively defined.[31] The additional discretionary factors that may be relevant to the grant of leave include whether the applicant has failed to pay the costs of a previous proceeding;[32] and whether the applicant has taken many other proceedings against the same organisations seeking substantially the same relief.[33]

Principles relating to the Wednesbury unreasonableness ground of review

43 A challenge to the legal validity of an exercise of statutory power on the ground of Wednesbury unreasonableness will succeed if - but only if - the exercise of power was so unreasonable that no reasonable decision-maker could have exercised that power in that way in those circumstances.[34]

44 A decision may be unreasonable in the Wednesbury sense because it is manifestly unreasonable, that is, it simply defies comprehension, or because it is obvious that the decision-maker consciously or unconsciously acted perversely. Wednesbury unreasonableness will also be made out where there was manifest illogicality in arriving at the decision - there being illogical findings, or inferences of fact unsupported by probative material or logical grounds.[35]

45 The ground of Wednesbury unreasonableness is difficult to establish, due to the fundamental distinction between judicial review, which is concerned with legal validity, and merits review, which is concerned with arriving at the correct (or preferable) decision in the circumstances.[36] Within the outer limits of validity defined by Wednesbury unreasonableness, it is for the decision-maker alone to determine what is reasonable in the circumstances. It is not for the court engaged in judicial review to decide whether what was done was reasonable.[37]

46 The Wednesbury unreasonableness ground may be established where there are inconsistent decisions in relation to circumstances and conditions that are substantially similar, if not identical.[38]

47 For the reasons that follow, I am not satisfied that the Proposed Proceeding will not be an abuse of the process of the Court. Accordingly, I am required by s 21(4) of the Act to refuse the Proposed Plaintiff's application for leave to commence the Proposed Proceeding.

48 In my opinion, the Proposed Proceeding is foredoomed to fail. The affidavit material filed by the Proposed Plaintiff in support of his application for leave is incapable of satisfying the test for Wednesbury unreasonableness as explained at [43] to [46] above. On its face, the Proposed Decision addresses the applicable criteria for determining applications for the purchase of in-cell computers in a rational and objective manner and takes into account the matters submitted by the Proposed Plaintiff in support of his application. The Proposed Decision explains that the refusal of the Proposed Plaintiff's application is based on his circumstances, as outlined in the Proposed Decision, and indicates the reasons for the favourable and unfavourable decisions that have been made in relation to applications by other prisoners.

49 It is trite law that, on an application for judicial review of an impugned decision, the power of the Court is limited to deciding whether the grounds of legal invalidity upon which the plaintiff relies are made out. It is not the function of the Court to consider the merits of the impugned decision. The judge's personal views of the correctness, appropriateness or fairness of the impugned decision are irrelevant. Where the plaintiff fails to establish a legal ground of invalidity, the application for judicial review must be dismissed, even if the judge disagrees with the impugned decision.

50 There are sound constitutional and practical reasons why this Court cannot substitute its own view for the view of Corrections Victoria. Under our Constitution, it is the executive - acting through Corrections Victoria - rather than the judiciary that administers the laws relating to prisoners. As a result, Corrections Victoria is far more knowledgeable and experienced than this Court can ever be about issues concerning the management of prisoners - including education, welfare and security - that inform the framework within which decisions affecting prisoners are made.

51 In the present application, the issue for the Court is whether, on the basis of the affidavit material and submissions upon which the Proposed Plaintiff has relied, there is any prospect of satisfying the test of Wednesbury unreasonableness, as explained at [43] to [46] above, in relation to the Proposed Decision. Having considered each of the 'particulars' in the Proposed Proceeding, as set out at [33] above, I am firmly of the view that there is no prospect.

52 The first particular is that the Proposed Decision is inconsistent with all other decisions of a like nature. The Proposed Decision explains why this assertion is factually incorrect. The Proposed Plaintiff is incapable of proving the correctness of the assertion and this is borne out by the fact that he has issued the subpoena to which reference is made at [35] above. As stated at [36] above, the Proposed Plaintiff has requested that the Court decide his application notwithstanding that the challenge to the subpoena remains unresolved.

53 The second particular is that the Proposed Decision is inconsistent without any rational justification. The issue of inconsistency has already been discussed. On its face, the Proposed Decision contains a rational justification for refusing the Proposed Plaintiff's application.

54 The third particular is that the Proposed Decision impedes the Proposed Plaintiff's access to the courts. This issue has already been determined against the Proposed Plaintiff by Hollingworth J in Wise.[39] Accordingly, it would be an abuse of process for the Proposed Plaintiff to re-agitate this issue.[40]

55 The fourth particular is that the approved lists of privileges for 2010 and 2012 include access to personal in-cell computers. The 2010 list included the item 'access to in-cell electrical appliances (other than televisions, radios, fan, water heating device and shaver)' and the item 'access to computers or electronic games consoles and associated software'. The 2012 list, upon which the Proposed Decision was based, includes the item '[a]ccess to all in-cell electrical appliances (other than radios, fan, jug and shaver)' and the item '[a]ccess to shared unit computers and unit electronic games consoles'. Whatever the position may have been in 2010,[41] it is clear that, in 2012, the list of privileges does not include access to an in-cell computer. The Proposed Plaintiff argued that the privilege concerning access to in-cell electrical appliances is wide enough to include access to in-cell computers. In my opinion, the existence of a specific and narrowly-worded privilege concerning access to in-cell computers precludes such access from falling within the broad privilege dealing with electrical appliances.

56 The fifth particular is that the Proposed Defendant applied policy guidelines to the Proposed Plaintiff in a manner that differed from other prisoners without any rational justification. This particular overlaps with the first and second particulars and is incapable of being made out on the basis of the materials submitted by the Proposed Plaintiff.

57 The final particular is that more than 300 applications by other prisoners have been approved even though they met less eligibility criteria than the Proposed Plaintiff's application. This particular also overlaps with the preceding particulars and it too is incapable of being made out.

58 The observation of Hollingworth J in Wise, as set out at [20] above, must be considered in the light of her Honour's statement that she had not seen the 300 applications. The Proposed Plaintiff does not have the alleged 300 applications in his possession and that is why he has sought their production pursuant [42] subpoena.42 The Proposed Decision explains the outcome of applications by prisoners whose circumstances are comparable to the Proposed Plaintiff's circumstances and notes that the Proposed Plaintiff is one of 12 prisoners whose applications have been rejected since April 2009.

59 As the Proposed Proceeding is foredoomed to fail, it would constitute an abuse of the process of the Court. It follows from s 21(4) of the Act that the Proposed Plaintiff's application for leave to commence the Proposed Proceeding must be dismissed.

[1] On 19 October 2004, Smith J made an order under s 21(3) of the Act that, for a period of 10 years, the Proposed Plaintiff must not commence any legal proceeding without the leave of the Court. See A-G (Vic) v Knight [2004] VSC 407 (19 October 2004).

[2] See Knight v Money [2009] VSC 242 (2 June 2009, Byrne J) ('Money'), Knight v Hastings [2010] VSC 99 (3 May 2010, Robson J) ('Hastings') and Knight v Wise [2011] VSC 313 (7 July 2011, Hollingworth J) ('Wise').

[3] [2009] VSC 242 (2 June 2009).

[4] Money [2009] VSC 242 (2 June 2009) [8].

[5] Money [2009] VSC 242 (2 June 2009) [19].

[6] Money [2009] VSC 242 (2 June 2009) [21].

[7] [2010] VSC 99 (3 May 2010).

[8] Hastings [2010] VSC 99 (3 May 2010) [189]-[194].

[9] Hastings [2010] VSC 99 (3 May 2010) [196].

[10] Hastings [2010] VSC 99 (3 May 2010) [203], [205], [208].

[11] Hastings [2010] VSC 99 (3 May 2010) [211].

[12] Commissioner, Corrections Victoria v Knight [2010] VSCA 203 (13 August 2010) ('CCV').

[13] CCV [2010] VSCA 203 (13 August 2010) [17]-[18], [34].

[14] CCV [2010] VSCA 203 (13 August 2010) [34].

[15] [2011] VSC 313 (7 July 2011).

[16] The ground of Wednesbury unreasonableness takes its name from the judgment of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, 229-30 ('Wednesbury').

[17] Wise [2011] VSC 313 (7 July 2011) [40], [44].

[18] Wise [2011] VSC 313 (7 July 2011) [68].

[19] Wise [2011] VSC 313 (7 July 2011) [75].

[20] Wise [2011] VSC 313 (7 July 2011) [72].

[21] Originating motion dated 5 October 2012 (emphasis in original).

[22] Phillip Morris Ltd v A-G (Vic) [2006] VSCA 21; (2006) 14 VR 538, 541 [12] ('Phillip Morris').

[23] Wise [2011] VSC 313 (7 July 2011) [10].

[28] Phillip Morris [2006] VSCA 21; (2006) 14 VR 538, 548 [42], 562 [118], 579 [153].

[29] Phillip Morris [2006] VSCA 21; (2006) 14 VR 538, 556 [85]; Knight v Anderson [2007] VSC 278; (2007) 16 VR 532, 534 [7].

[30] Phillip Morris [2006] VSCA 21; (2006) 14 VR 538, 541 [12], 570 [134], 578 [149].

[31] Hastings [2010] VSC 99 (3 May 2010) [184]; Wise [2011] VSC 313 (7 July 2011) [12].

[32] Phillip Morris [2006] VSCA 21; (2006) 14 VR 538, 559 [98].

[33] Hastings [2010] VSC 99 (3 May 2010) [185].

[34] Mastwyk v DPP [2010] VSCA 111; (2010) 27 VR 92, 96 [16] ('Mastwyk').

[35] East Melbourne Group Inc v Minister for Planning [2008] VSCA 217; (2008) 23 VR 605, 647-8 [183].

[36] Mastwyk [2010] VSCA 111; (2010) 27 VR 92, 96 [17].

[37] Mastwyk [2010] VSCA 111; (2010) 27 VR 92, 96 [17].

[38] Dilatte v MacTiernan [2002] WASCA 100 (1 May 2002) [58]-[62].

[39] [2011] VSC 313 (7 July 2011) [40], [44].

[40] Phillip Morris [2006] VSCA 21; (2006) 14 VR 538, 542 [20] (c).

[41] In Wise, Hollingworth J held that is was at least arguable that the 2010 list 'should be construed so as to include in-cell access [to computers]'. See [2011] 11 VSC 313 (7 July 2011) [61].

[42] See above, [35] and [36].

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