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

1 Mr Knight 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 Mr Knight a vexatious litigant.[2] Relevantly, his Honour's orders provided that Mr Knight "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 Mr Knight applies by originating motion and supporting summons, both dated 11 October 2012, for leave pursuant to s 21(4) of the Supreme Court Act 1986, to commence a proceeding in this court, against the proposed defendant, the Commissioner, Corrections Victoria.

4 In the proposed proceeding, Mr Knight wishes to seek a mandatory injunction ordering the proposed defendant to allow him to have unmonitored and unrecorded telephone access to the telephone number of the Prothonotary of the Supreme Court of Victoria. Through that number, callers are able to contact a number of persons, including the Prothonotary and Deputy Prothonotaries, the Practice Court Coordinator, the Self Represented Litigants Coordinator, and other registry staff.

5 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. Alternatively, he argued that leave should be refused on discretionary grounds.

Discretion to grant leave under s 21(4)

6 As a vexatious litigant, Mr Knight 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."

7 The court's power under that provision 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).[3]

8 In that case, the court cited with approval the examples of what may constitute an abuse of process, which were given in Walton v Gardiner[4] by Mason CJ, Deane and Dawson JJ. The example which is relevant in this case is where the proceeding can be clearly seen to be foredoomed to fail.

9 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 There is no dispute as to the facts underlying the proposed proceeding.

11 Mr Knight deposes in paragraph 8 of his supporting affidavit that:

Pursuant to the Corrections Victoria Commissioner's Requirement regarding the prisoner telephone system (29 August 2011), prisoners are permitted a maximum of 10 numbers on their approved telephone list. Each number must be preapproved by the prison before being added to the prisoner's approved telephone list. These numbers may be either private or exempt (ie legal) numbers. Exempt numbers are given the call category 'L', whereas private numbers are given the call category 'P'. Private numbers are automatically recorded by the ARUNTA Controlled Telephone System ("ACTS"). Both private and legal telephone calls are preceded by a recorded telephone message that states that the call is from a prisoner at the nominated prison. The recorded message for private calls, however, includes the statement that the call may be monitored and recorded. Private calls are for 12 minutes duration. Exempt calls are for 30 minutes duration.

12 When he was previously imprisoned at Barwon Prison, Mr Knight had the Prothonotary's telephone number listed as a legal number. Upon transferring to Port Phillip on 19 June 2007, Mr Knight's existing approved telephone list was automatically approved at Port Phillip. Accordingly, the Prothonotary's number remained listed as a legal number.

13 On 16 May 2012, Mr Knight noticed that the Prothonotary's number had been changed from a legal to a private number. He subsequently learned that the change had occurred back in September 2011.

14 The operations manager at Port Phillip has informed Mr Knight that the change of classification from a legal to a private number was made at the direction of Corrections Victoria.

15 It is not disputed that Corrections Victoria has adopted this as a practice or policy in respect of all prisoners in Victoria, not just Mr Knight.

16 Mr Knight points out that there is no evidence before the court as to why the change of practice or policy has taken place. However, a proposed defendant is not required to put any evidence before the court on an application such as the current one; indeed, in many such cases the proposed defendant will not even appear. It is the applicant for leave who bears the onus of putting sufficient evidence before the court to persuade it to grant leave to commence a substantive proceeding.

17 Mr Knight asserts that the change in classification of his phone calls to the Prothonotary's number breaches his "right at common law and pursuant to s47(2) of the Corrections Act 1986, of unimpeded access to the courts."

18 Section 47(1) of the Corrections Act creates a number of specific rights for prisoners. Although s-s 47(1)(m) creates certain specific rights in relation to correspondence, there is no equivalent provision in relation to telephone calls. However, s 47(2) expressly preserves the common law rights of prisoners.

19 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.

20 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.[5]

21 On the other hand, in Rich v Groningen,[6] 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.

22 In Knight v Hastings & Roach,[7] Mr Knight 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 Mr Knight proposed to commence.

23 In The Commissioner, Corrections Victoria v Knight,[8] the Court of Appeal rejected the Commissioner's application for leave to appeal against Robson J's decision. There was no suggestion in the reasons of the Court of Appeal that the right is not able to be asserted in a civil proceeding separate to the one in which the unfairness is alleged to be occurring.

24 For present purposes, I proceed on the basis that the right is one 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.

25 The right of unimpeded access to courts has been held to include the right to send documents to the courts without obstruction or interference from prison authorities.[9]

26 The right has also been held to encompass a prisoner's right of access to a lawyer for the purposes of obtaining advice and assistance, in relation to both current and proposed proceedings.[10] However, a crucial part of the reasoning in the cases concerning access to lawyers has been the existence of legal professional privilege, and the recognition that a prisoner must be free to communicate in confidence with his or her lawyer in order to be able effectively to access the courts.

27 Even in the case of privileged communication with lawyers, the courts have not held that a prisoner's rights are absolute. For example, the prison authorities may impose restrictions or conditions in relation to when and for what duration calls may be made, as long as those conditions or limitations do not impede access to the courts.

28 The authorities indicate that the right is breached only by action or inaction that would, in effect, prevent a person from accessing the courts.[11] The right is not concerned with matters which merely relate to a prisoner's convenience or preference.[12]

29 The problem for Mr Knight is that there is simply no evidence that his right of access to the Supreme Court is being impeded (substantially, or at all) by the policy or practice. There is no evidence that he has been unable to communicate effectively with anybody in the Prothonotary's office due to the shorter time limit on private calls. Or that he has been prevented from accessing the services of anybody in the Prothonotary's office by the fact that his phone calls are recorded and able to be monitored. While he would prefer to be able to speak without such limitations, there is no evidence that they are impeding his access.

30 Mr Knight tells me orally that he has felt constrained in his communications with the Prothonotary by the fact that calls may be monitored; however, he did not give any specific examples of that occurring. Even assuming that there were evidence to that effect before me, that would not go far enough to satisfy the requirements here. That is because, given the nature of the roles of the relevant court officials, there can be no reasonable basis for an expectation of privacy or confidentiality in communications with the Prothonotary or persons in his office.

31 The Prothonotary is a public official. True it is that he, and some of the other persons in his office, are qualified lawyers. But although he, and the others who may be contacted through his phone number, may provide practical advice to the public about procedural matters, it is no part of their role to provide legal advice. Indeed, the Supreme Court website confirms that such persons are not permitted to give legal advice. Accordingly, there is no question of legal professional privilege attaching to such communications. Nor is confidentiality a relevant factor. Court officials are required to be neutral and independent participants in the matters which come before the court. A party's communications with court officers, whether in the Prothonotary's office or a member of the judge's staff, are not and should not ever be regarded as confidential.

32 For these reasons, Mr Knight has not persuaded me that the proposed proceeding is not foredoomed to fail. That is to say, he has not established on the evidence that his access to the Supreme Court is being impeded in the relevant sense, due to his phone calls to the Prothonotary's number being classified as private not legal.

33 The fact that the classification of phone calls may be of concern to other prisoners does not take the matter any further. It is not appropriate to grant Mr Knight leave to commence a proceeding in relation to what is effectively a hypothetical situation.

34 The application for leave to commence a proceeding will be dismissed.

[1] R v Knight [1989] VicRp 62; [1989] VR 705.

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

[3] [2006] VSCA 21; (2006) 14 VR 538.

[4] [1993] HCA 77; (1993) 177 CLR 378.

[5] 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].

[6] (1997) A Crim R 272, 287-288.

[7] [2010] VSC 99.

[8] [2010] VSCA 203.

[9] Raymond v Honey [1983] 1 AC 1.

[10] Reg v Secretary of State for the Home Department, ex parte Anderson [1984] QB 778; R v Secretary of State for the Home Department; ex parte Leech (No 2) [1993] EWCA Civ 12; [1994] QB 198; Reg (Daly) v Secretary of State for the Home Department [2001] 2 AC 532; W231/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 80.

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

[12] R v Rich (Ruling No 2) [2008] VSC 141.