Proposed Plaintiff v Proposed Defendant

Supreme Court of Victoria|2014-03-07|Before: T FORREST J

PRACTICE AND PROCEDURE - Vexatious litigant - Application for leave to commence proceeding - Whether proposed proceeding foredoomed to fail or otherwise an abuse of process - Supreme Court Act 1986 s 21(4) - Leave granted to issue proceeding on limited basis.

ADMINISTRATIVE LAW - Proposed proceedings concern decision to deny proposed plaintiff access to an in-cell computer - Whether decision breached common law right of unimpeded access to the courts - Inflexible application of a policy - Irrelevant considerations - Unreasonableness - Bias - Whether amenable to relief in the nature of certiorari and mandamus - Declaratory relief.

1 In 2004 the proposed plaintiff, Julian Knight, was declared a vexatious litigant pursuant to s 21 of the Supreme Court Act 1986 (Vic) ('the Act'). By amended originating motion dated 27 August 2013 he has applied for leave to bring proceedings in this Court against Roderick Wise, the Deputy Commissioner of Corrections Victoria.

2 Mr Knight is currently serving a life sentence at Port Phillip Prison. He will be eligible for parole in 2014. The proposed legal proceedings challenge a decision made by Mr Wise on 15 August 2013 to deny Mr Knight permission to purchase an in-cell computer ('the decision').

3 Mr Knight has made 18 applications on various grounds for an in-cell computer since 23 August 2006. None of these applications has been successful; many have been the subject of applications for leave to commence proceedings in this court.

4 In Knight v Deputy Commissioner, Corrections Victoria, Justice Kyrou set out a detailed history of these applications that I now gratefully adopt.[1] This does not, of course, include subsequent proceedings brought by Mr Knight. There are now seven published decisions of this Court and the Court of Appeal dealing with applications for leave to commence proceedings challenging decisions to refuse Mr Knight access to an in-cell computer.[2] Many of these decisions touch upon or dispose of aspects of these proposed proceedings.

5 Mr Knight has filed three affidavits in this application affirmed 9 July 2013, 30 July 2013 and 10 September 2013.[3] The proposed defendant has filed his own affidavit sworn 4 October and two affidavits of Jason Neuendorff affirmed 22 August 2013 and 4 October 2013[4].

6 As a vexatious litigant Mr Knight requires the leave of the Court to commence legal proceedings. 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 (s 21(4) of the Act)[5]. The onus rests with the proposed plaintiff to establish that the proposed proceedings will not be an abuse of process.[6]

7 In Walton v Gardiner[7] Mason CJ, Deane and Dawson JJ considered the following to be examples of an abuse of process:

(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.[8]

These remarks were cited with approval by the Court of Appeal in Phillip Morris Ltd v Attorney-General (Vic). [9]

8 In considering whether a proceeding would be an abuse of process, it is sometimes relevant to consider its prospects of success, but in a strictly limited respect. The issue is whether the proceeding is foredoomed to fail, not whether it has reasonable grounds.[10]

9 On an application such as this it is ordinarily not practicable to decide questions of substantive fact. That rule has, however, been considered to be subject to exceptions in appropriate circumstances.[11] Although the Court will generally not decide questions of fact in this type of interlocutory application, it is necessary for the proposed plaintiff to advance some basic factual material to demonstrate a prima facie case in order to discharge his onus.[12]

10 The power to grant leave to commence proceedings is discretionary.[13] It follows that even if the plaintiff established that the proposed proceedings are not or would not be an abuse of process, leave might still be refused.

11 Mr Wise opposes the application for leave to commence the proposed proceedings on the ground that they are foredoomed to fail or would otherwise be an abuse of process. Alternatively, he argues leave should be refused on discretionary grounds.

12 Access to an in-cell computer is not a right.[14] That access has been described as being in the "nature of an indulgence which may be accorded a prisoner where this is considered appropriate". [15] There is no right to an in-cell computer to be found in s 47 of the Corrections Act 1986 (Vic) ('the Corrections Act'). It does not necessarily follow, however, that prisoners do not have an interest in decisions that determine their access to an in-cell computer or, for that matter, that those decisions do not have legal consequences that might make them amenable to prerogative relief.

13 As a part of the general administration of their custody prisoners may be allowed access to an in-cell computer. The statutory and regulatory foundation for this practice appears to lie in the function of the Secretary to the Department of Justice as the legal custodian of persons subject to orders of imprisonment.[16] In reality, these functions are exercised by the Commissioner for Corrections and various other public servants. One such person is the Deputy Commissioner for Corrections, Mr Roderick Wise.

14 From time to time, Corrections Victoria issues Commissioner's Requirements which contain policy guidelines concerning particular matters. The Commissioner's Requirement: Prisoner Property - Prisoner Computers (12 December 2012)[17] sets out the policy guidelines, including eligibility criteria, for the making of applications for access to a personal in-cell computer. Extracts of the Commissioner's Requirement relevant to the proposed proceedings are as follows:

1. Purpose

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

2. Philosophy

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 requirement, or where access to an 'in-cell' computer is seen to be crucial to the prisoner's sentence plan and rehabilitative needs.

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.

3. Background

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).

[...]

In the case of a Major Offender, the Deputy Commissioner, Operations will approve these applications, following recommendation by the Director, Sentence Management Branch.

[...]

4. Requirement

4.01 Eligibility criteria

[...]

Prisoners making application ... must meet at least one of the criteria listed below:

4.02 Legal Criterion

The prisoner [...] has an outstanding criminal legal matter or outstanding criminal appeal and it is necessary for the preparation of their case/defence.

[...]

Access to an in-cell computer for outstanding civil matters will be approved only in exceptional circumstances.

4.03 Education/Training Criterion

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 necessary (ie not just that it would be beneficial). 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.

[...]

4.04 Exceptional Circumstances Criterion

A prisoner may be granted approval for an in-cell computer where the Prison General Manager or delegate considers that exceptional circumstances exist.

15 The Commissioner's Requirement also sets out the process for making and approving applications for access to an in-cell computer. In the majority of cases applications will be determined at the prison level by the relevant General Manager or their delegate, taking into account various reports and recommendations.

16 Where the applicant is classified as a 'major offender' there are additional requirements. These include a recommendation from the Manager of the Major Offender Unit and final approval by the proposed defendant, the Deputy Commissioner for Corrections. [18]

17 Prisoners who wish to challenge a decision denying them access to an in-cell computer may write to the Deputy Commissioner. They must state the reasons why they consider an in-cell computer to be necessary and request that the decision be reviewed.

18 On 8 May 2013 Mr Knight wrote to Mr Wise requesting access to an in-cell computer.[19] It is unclear to me whether this was a request for a review of an earlier decision or an application de novo. Little turns on this. The letter sets out Mr Knight's reasons for believing himself to meet the legal, educational and exceptional circumstances eligibility criteria. Of principal relevance to the proposed proceedings is Mr Knight's belief that it was necessary for him to have access to an in-cell computer because he was a self-represented litigant in 10 proceedings before the Supreme Court of Victoria. He was also preparing a claimant's submission to the Defence Abuse Response Taskforce (DART). The deadline for the filing of this submission was 30 November 2013.

19 On 30 July 2013 Mr Knight again wrote to Mr Wise.[20] The letter concerned the status of the various legal matters to which he was then a party. By this time it appears he was plaintiff or proposed plaintiff in 13 proceedings in the Supreme Court, one proceeding in the Federal Court and one proceeding in the High Court.

20 On 15 August 2013 Mr Wise wrote to Mr Knight refusing him permission to access an in-cell computer.[21] Mr Wise explained that his broad position concerning the application was set out in an earlier decision of 24 April 2012.[22] Mr Wise supplemented those earlier reasons where he considered it necessary to do so. He responded to matters raised by the fresh application.

21 By amended originating motion the proposed plaintiff seeks relief in the following terms and upon the following grounds:

2. The plaintiff seeks from the Court an order in the nature of certiorari quashing the defendant's decision of 15 August 2013 to deny the plaintiff's application for access to a personal in-cell computer submitted on 8 May 2013, & a further order in the nature of mandamus requiring the defendant to reconsider the plaintiff's application according to law, on the grounds that;

(a) The defendant's decision breaches the plaintiff's right, pursuant to the common law & to s. 47(2) of the Corrections Act 1986 (Vic), of unimpeded access to the courts,

(b) The defendant's decision breaches the plaintiff's right, pursuant to s. 24(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic), to a fair hearing,

(c) The defendant's policy that applications by prisoners for access to a personal 'in-cell computer for outstanding civil matters will be approved only in exceptional circumstances' infringes the plaintiff's common law right of unimpeded access to the courts,

(d) The defendant's decision to deny the plaintiff's application exhibited the nature of an inflexible policy in that it applied policy criteria excluding access to a personal computer for outstanding civil matters without due regard to the merits of the plaintiff's applications,

(e) The defendant took into account an irrelevant consideration, namely the plaintiff's status as a vexatious litigant,

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

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

(ii) The decision was inconsistent without any rational justification, &

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

(g) The defendant's decision was tainted by bias,

(h) The defendant's decision was made for an improper purpose, namely to hinder the plaintiff's prosecution of the proceedings and proposed proceedings that are on foot, &

(i) The defendant's decision was dictated by the Minister for Corrections.

3. The plaintiff further seeks from the Court a declaration that a prisoner's status as a declared vexatious litigant does not affect his common law right of unimpeded access to the courts, or for such other declaration as the court thinks fit.

4. The plaintiff further seeks from the Court 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, or for such other declaration as the court thinks fit.

22 At the hearing of this application Mr Knight conceded there was simply no evidence that the Minister for Corrections had dictated the proposed defendant's decision. Accordingly he sought and was granted leave to withdraw that ground. This was a sensible decision.

23 As I have said, the proposed defendant submits that I cannot be satisfied an application that sought relief on each of these grounds is not or would not be an abuse of process. For the reasons that follow I am satisfied that this is not so. Beyond this conclusion I venture no opinion as to Mr Knight's prospects of success on any or all of the proposed grounds.

Common Law Right of Unimpeded Access to the Courts

24 At paragraphs 2(a) and (c) of his originating motion the proposed plaintiff seeks prerogative relief on the following grounds:

(a) The defendant's decision breaches the plaintiff's right, pursuant to the common law & to s. 47(2) of the Corrections Act 1986 (Vic), of unimpeded access to the courts, and;

(c) The defendant's policy that applications by prisoners for access to a personal 'in-cell computer for outstanding civil matters will be approved only in exceptional circumstances' infringes the plaintiff's right common law right of unimpeded access to the courts.

25 I deal first with ground (a). The common law right of unimpeded access to the courts is breached by action or inaction that effectively prevents a person from properly presenting his or her case to a court.[23] In the prison setting a court will intervene to protect that right where the prison authority takes steps that would have the effect of preventing the prisoner from effectively accessing the court.[24]

26 Mere inconvenience is not sufficient to justify intervention. In R v Rich (Ruling No 2)[25] Justice Lasry considered the right to a fair trial in the criminal context:

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.[26]

27 The same or similar issues concerning the common law right of access to the courts have arisen in successive applications for leave to commence proceedings brought by Mr Knight.[27] None of these proceedings has determined this issue in Mr Knight's favour. In Knight v Hastings & Anor[28] Justice Robson noted that:

[t]he issue is not what would be easier or more convenient to Mr Knight. The issue is whether his access to the court in relation to the substantive applications is or will be impeded.[29]

28 I accept that there is some controversy concerning the scope of the right.[30] There is also a factual controversy concerning the nature and extent of Mr Knight's legal commitments. Mr Knight deposes that he is, or was at the time of the decision, party to 15 legal proceedings before this and other courts.[31] Mr Wise submits that of those alleged proceedings a large number have settled, been disposed of, or no longer require the filing of written documents. In at least one proceeding it appears Mr Knight is legally represented.[32]

29 Doubtless it would be easier for Mr Knight to meet his various court deadlines if he had access to an in-cell computer. I am not, however, satisfied the evidence could sustain a finding that there has been or could be a breach of Mr Knight's common law right of unimpeded access to the courts. Despite the large number of proceedings or proposed proceedings to which he is currently a party Mr Knight continues to file numerous originating documents, legal submissions and affidavits. These are almost always long and detailed and sometimes quite sophisticated. Mr Knight's correspondence with various court officials, or at least that part of it that was on the court file, has been constant.

30 Mr Knight has access to relevant court documents and materials filed by the defendants to his various proceedings. He has access to a considerable number of primary and secondary legal sources at the Port Phillip Prison Library.[33] Between the hours of 8:40AM and 4:00PM Monday, Tuesday, Thursday and Friday Mr Knight has access to shared computers in the prison library.[34]

31 In my view Mr Knight has failed to demonstrate that ground (a) is not foredoomed to fail. It follows that I will not grant Mr Knight leave to seek relief on the ground.

32 Ground (c) of Mr Knight's originating motion concerns the policy, established by the Commissioner's Requirement, that access to 'in-cell computer for outstanding civil matters will be approved only in exceptional circumstances'. It is said this policy breaches the common law right of unimpeded access to the courts. On one view this ground is a particular of ground (a).

33 The ground is plainly foredoomed to fail. A policy could not breach the right unless it actually had the effect of impeding a person's access to the courts. As I have said, there is simply no evidence supporting the conclusion that it did or would have that effect.

34 At paragraph 2(b) of his originating motion Mr Knight alleges:

The defendant's decision breaches the plaintiff's right, pursuant to s. 24(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic), to a fair hearing;

35 Section 24(1) of the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) provides:

(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

36 The right to a fair hearing is concerned with the procedural fairness of a decision.[35] What fairness requires will depend on all the circumstances of the case.[36] Broadly, it ensures a party has a reasonable opportunity to put their case in conditions that do not place them at a substantial disadvantage compared to their opponent.[37] This principle is commonly known as the principle of equality of arms.

37 There is no evidence that Mr Knight's lack of access to an in-cell computer will result in such a substantial disadvantage. The comments of Justice Lasry set out above at [26] apply here with equal force. Breach of the right to a fair hearing requires more than inconvenience. As I have said, Mr Knight has access to shared prison computers, primary and secondary legal materials and relevant case documents.

38 The right to a fair hearing also includes or embraces the common law right of unimpeded access to the courts[38], an implied right to a reasonably expeditious hearing[39], duties to inquire[40], rights to legal advice and representation[41] and the privilege against self-incrimination[42]. Many of those rights are not at issue in the proposed proceedings; the ground concerning the common law right of unimpeded access to the courts has been dismissed above.

39 It is worth saying at least something about delay. There is no evidence that any delay in the hearing of Mr Knight's various proceedings could be attributable to his lack of access to an in-cell computer. Alternatively, I am not satisfied that any delay in the hearing of his various proceedings has been or could become unreasonable.

40 Mr Knight has decided to make a submission to the Defence Abuse Response Taskforce. It is submitted that this will occupy the majority, if not all, of his available computer time. DART performs an important social function. So too do persons who make submissions to it. But ultimately, the nature and extent of Mr Knight's involvement in that process is his to determine. All litigants must manage their court commitments around their personal affairs. Where this poses difficulties for self-represented litigants, courts can and do take positive steps to accommodate them. At times, this will include the ordering of an adjournment.

41 The reasonableness of any delay will depend on all the circumstances of the case.[43] These will include the length of the delay and the reasons for the delay and, if the delay is the result of an adjournment, the reason for that adjournment. This is not a case in which a prisoner-litigant's effective access to the courts has been impeded by the Corrections authorities and those authorities submit the impediment can be remedied through delay or adjournment. [44]

42 I am not satisfied that this ground is not foredoomed to fail.

43 At paragraph 2(d) of Mr Knight's originating motion he alleges:

[t]he defendant's decision to deny the plaintiff's application exhibited the nature of an inflexible policy in that it applied policy criteria excluding access to a personal computer for outstanding civil matters without due regard to the merits of the plaintiff's applications,

44 This ground can be disposed of quickly. It is simply incorrect to say Mr Wise applied policy criteria excluding access to a personal computer for outstanding civil matters without due regard to the merits of the proposed plaintiff's application.

45 First, the Commissioner's Requirement does not exclude access to an in-cell computer for outstanding civil matters. It simply indicates that '[a]ccess to an in-cell computer for outstanding civil matters will be approved only in exceptional circumstances.'[45] Second, in his letter of 8 May 2013 Mr Wise in fact considered the merits of Mr Knight's case before coming to the view that no such circumstances existed. He accepted that Mr Knight was a party to a large number of civil proceedings and set out his reasons for giving that fact little or no weight. In doing so, Mr Wise may have taken an irrelevant consideration into account. But that is beyond the scope of this ground.

46 The rule against the inflexible application of a rule or policy requires decision makers to consider the merits of an application and be prepared to make an exception to any general rule or policy. It does not require them to make the exception.

47 It follows that I am not satisfied that this proposed ground is not foredoomed to fail.

48 At paragraph 2(e) of his originating motion Mr Knight alleges:

[t]he defendant took into account an irrelevant consideration, namely the plaintiff's status as a vexatious litigant.

49 In Knight v Wise[46] Justice Hollingworth granted limited leave to commence proceedings seeking prerogative relief on, inter alia, the ground that the proposed defendant had had regard to an irrelevant consideration. Then, as now, the irrelevant consideration was said to have been Mr Knight's status as a vexatious litigant.

50 Mr Knight then commenced those proceedings before Justice Dixon. On 27 March 2012 the defendant to those proceedings conceded error and consented to the making of orders setting aside the relevant decision and remitting the matter for determination according to law[47]. Mr Knight opposed the making of those orders by consent. At the hearing of this application he advanced his own theories as to why Corrections Victoria might have adopted such a course of action in making the concession.

51 The result is that this issue has never been fully argued and determined. I am satisfied that a Court hearing this aspect of the proposed proceedings could conclude Mr Knight's status as a vexatious litigant was irrelevant to the decision to grant him access to an in-cell computer. In that regard I gratefully adopt the following comments of President Maxwell in The Commissioner, Corrections Victoria v Knight & Anor:

It is not at all clear to me how the status of a person as a vexatious litigant could be relevant to the question of that person's access to computer facilities, when the express object of his seeking access is to enable the person to exercise his right to apply for leave to litigate. That is of course a question for the judge who will hear this proceeding.[48]

52 Equally, I am satisfied that the evidence could support a finding that Mr Wise did consider Mr Knight's status as a vexatious litigant. The following passage from Mr Wise's letter of 8 May 2013 is one piece of evidence that tends to suggest that he may have:

While your status as a vexatious litigant is not a reason per se to deny you access to a computer, it indicates that you have brought proceedings in the past that have been deemed by Courts to be foredoomed to fail, in light of which the provision of a long list of civil actions that you have on foot does not in itself persuade me to attach much weight to that list of proceedings.

53 Despite the assurance in the first line it is at least arguable that this passage demonstrates that Mr Knight's status as a vexatious litigant was a live consideration in the decision. Ultimately, the drawing of any inference to this effect would be a matter for the Judge hearing the proposed proceedings. For my part I am satisfied such an inference would be available on the evidence. It follows that I am satisfied this aspect of the proposed proceedings is not foredoomed to fail.

54 At paragraph 2(f) of his originating motion Mr Knight alleges:

[the] defendant's decision to deny the plaintiff's application was an improper exercise of power as it was so unreasonable that no reasonable body would have reached it, given that;

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

(ii) The decision was inconsistent without any rational justification, &

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

55 As I have said, Mr Wise's decision by letter of 15 August 2013 in effect updates an earlier decision of 24 April 2012. That decision, written in reply to an earlier application, has previously been the subject of proceedings in this court.

56 In Knight v Deputy Commissioner, Corrections Victoria Mr Knight sought leave to commence proceedings for review of this decision on the ground that it was 'so unreasonable that no reasonable body would have reached it'.[49] Mr Knight alleged six particulars of unreasonableness, three of which were identical to the particulars now appearing in his originating motion at paragraphs 2(f)(i)-(iii).

57 Justice Kyrou refused leave to commence the proposed proceedings as they were foredoomed to fail.[50] His Honour found that the material before him, including the letter of 24 April 2012, was incapable of satisfying the test of Wednesdbury unreasonableness:

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.[51]

58 The question, then, is whether the letter of 15 August 2013 introduces an element of unreasonableness to Mr Wise's decision that was otherwise absent from the letter of 24 April 2012. I am satisfied that it does not.

59 The letter of 15 August 2013 refers Mr Knight to the earlier letter. It then endeavours to explain why, as a matter of policy, Corrections Victoria would more readily recognise a need for an in-cell computer in criminal rather than civil proceedings. Mr Wise then notes that he considers Mr Knight's capacity to initiate so many civil proceedings to support the conclusion that the lack of an in-cell computer has not impeded his access to the courts.

60 It is not the function of this court to consider the appropriateness or fairness of this policy.[52] Nor is it a matter of arriving at the correct, or preferable decision. The ground of Wednesbury unreasonableness will only be made out where a decision is so unreasonable that no reasonable decision maker could have made the same decision in the same circumstances.[53]

61 On its face the decision is rational, objective and takes Mr Knight's circumstances into account. There are no illogical findings or inferences of fact unsupported by probative material.[54] It explains the weight Mr Wise gave to the various considerations before him. If, in so doing, Mr Wise took into account an irrelevant consideration Mr Knight may seek redress under that ground.

62 Wednesbury unreasonableness may also be established where the decision under review is plainly inconsistent with other decisions made in respect of circumstances that are substantially similar, if not identical, to those of the decision under review.[55] Mr Knight submits that the simplicity of the single-page, standard-form application means that a large number of applications will be sufficiently similar to the instant application.[56] I accept that upon completion a large number of these application forms will resemble one another. This is because the forms do little more than allow an applicant to indicate (by checking a box) on which of the eligibility criteria their application relies.

63 The argument goes no further. Ultimately it is an assessment of an applicant's circumstances that results in the decision. Mr Wise submitted that many applications are accompanied by letters or other supplementary materials. These materials, he submitted, set out the circumstances that make it necessary and/or appropriate for an applicant to have access to an in-cell computer. In reply, Mr Knight maintained he is one of a very small number who supplement their applications with letters of justification. He concedes, however, that at the very least prisoner applications will be accompanied by letters from third-party legal representatives or education providers. I also consider it likely that prison records will disclose matters such as the prisoner's 'conduct and work record, the type of accommodation' or the risk that access to an in-cell computer 'would engender significant community concerns'.[57]

64 Mr Knight is unable to provide the Court with any evidence that applications for an in-cell computer have been approved in circumstances that are substantially similar, if not identical, to the present application. In my view this aspect of the proposed proceedings is foredoomed to fail.

65 Mr Knight pressed arguments concerning the existence of a statutory privilege to an in-cell computer. They do not form a part of his originating motion. If such a statutory privilege existed it might give rise to a legitimate expectation that an application for an in-cell computer would be considered in accordance with the relevant policy guidelines, including eligibility criteria, and the principles of procedural fairness. [58] I am not, however, satisfied that such a privilege exists.

66 Under s 112(1)(a) of the Corrections Act the Governor in Council has the power to make regulations with respect to "the privileges of prisoners". Regulation 42 of the Corrections Regulations 2009 (Vic) provides:

Prisoner privileges

(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.

67 In Knight v Wise, Justice Hollingworth concluded that it was at least arguable that the 2010 list of privileges "should be construed so as to include in-cell access [to computers]". [59]

68 The 2013 list of privileges is, however, different to the list that was then before her Honour. Relevantly, the 2013 list provides:

The following list of privileges applies in all prisons for all prisoners not on a restricted regime:

• Access to full canteen spends and canteen spend items other than essential toiletries.

• Access to telephone calls, other than to the prisoner's legal representative(s) and the Ombudsman.

• Access to all in-cell electrical appliances (other than radios, fan, jug and shaver).

• Access to television, including DVD/videotapes where available.

• Access to shared unit computers and unit electronic games consoles.

• Access to extended out-of-cell hours or night activities, where offered.

• Access to personal in-cell property in excess of 50 points.

• Association with other prisoners at the same prison location who are subject to the same regime.

• Access to full out-of-cell hours as approved for the prison.

69 Mr Knight submits that in-cell computers are included within the sixth privilege, '[a]ccess to all in-cell electrical appliances (other than radios, fan, jug and shaver).' A number of arguments are advanced in support of this proposition. For the reasons set out below it is not necessary to rehearse them here.

70 The approved list of privileges for 2013 is identical to the approved list of privileges for 2012. This was not a matter of dispute at the hearing of this application. Justice Kyrou considered the 2012 list of privileges in Knight v Deputy Commissioner, Corrections Victoria. His Honour rejected Mr Knight's submission that access to an in-cell computer was a privilege existing under that list:

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, 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.[60]

71 Mr Knight sought leave to appeal this decision on, inter alia, the ground that Justice Kyrou had incorrectly interpreted the 2012 list of privileges[61]. Refusing leave on this and all other grounds the Court found that

...his Honour correctly held that when the reference in the List of Privileges to 'in-cell electrical appliances' is read alongside the reference to use of 'shared unit computers', the applicant's argument cannot be sustained.[62]

72 In my view the issue of a statutory privilege to an in-cell computer is a matter that was disposed of in Knight v Deputy Commissioner, Corrections Victoria in reasons subsequently affirmed by the Court of Appeal. It would be an abuse of process to permit Mr Knight to relitigate this issue simply because the privileges are stated in a list approved for 2013 rather than the identical list approved for 2012.

73 Even if I were satisfied that the existence of a new though identical list of privileges meant Justice Kyrou had not already disposed of the matter I am not satisfied that this aspect of the proposed proceedings would not be foredoomed to fail. The decisions in Knight v Deputy Commissioner, Corrections Victoria and Knight v Hastings; Knight v Wise are authority for the proposition that the correct interpretation of the 2012 list of privileges is one that does not include a privilege to an in-cell computer. If that list is in all relevant respects identical to the 2013 list I do not see how the Court hearing the proposed proceedings could conclude the 2013 list meant otherwise.

74 At paragraph 2(g) of his originating motion Mr Knight seeks prerogative relief on the ground that Mr Wise's decision is affected by bias.

75 There is a well accepted duty to accord procedural fairness in the making of administrative decisions that affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.[63] The rule against bias, whether actual or apprehended, is one part of this duty.

76 As Justice Hollingworth noted in Knight v Wise, Mr Knight is in the very unfortunate position that decisions concerning his access to an in-cell computer are made by persons who work for Corrections Victoria and/or the Department of Justice, the opposing parties in many of the proceedings in which he seeks such access.[64] Were it not for what follows there would, I think, be an arguable case that Mr Wise's decision was affected by apprehended bias.[65] There is no evidence that the decision was affected by actual bias.

77 The ground of bias is subject to the principle of necessity. That principle prevails over a finding of actual or apprehended bias where no other person or entity, unaffected by the bias, is authorised to make the decision.[66] On the other hand,

[The doctrine of necessity] does not apply where it is not necessary that the disqualified person or entity should make the decision. Hence if it is possible and practicable to appoint another person or entity to make the decision then the doctrine does not apply. However, this is not an inflexible rule and there may be circumstances where the doctrine should apply because not to do so, would result in enormous cost or substantial delay.[67]

78 I am of the view that it is neither possible nor practicable to appoint another person or entity to make the decision. The decision to allow or refuse access to an in-cell computer is a part of the Secretary to the Department of Justice's general administration of prisoner custody. As I have said, this and other functions are exercised by the Commissioner for Corrections and various other public servants including the proposed defendant, Mr Wise.

79 I cannot see how the appointment of another decision maker would not give rise to similar, if not identical, apprehensions of bias. This person or entity would invariably be employed by or associated with the Department of Justice and/or Corrections Victoria. Any apprehension of bias that attaches to Mr Wise would attach to that person or entity through this association.

80 Prisoners routinely bring actions against the Department of Justice and Corrections Victoria. It cannot be that this fact could prevent the administration of their custody by the persons or entities who are empowered, under the Corrections Act, to do so. The function of the principle of necessity has always been to allow the 'discharge of public functions in circumstances where, but for its operation, the discharge of those functions would be frustrated with consequent public or private detriment.'[68] It does no more than that in this case.

81 The principle applies only to the extent that necessity justifies.[69] Its application is dictated by the circumstances of the case. The principle could not apply if those circumstances were such (or became such) that its application would involve positive and substantial injustice.[70]

82 It follows that I am not satisfied this ground would not be foredoomed to fail.

83 At paragraph 2(h) of his originating motion Mr Knight alleges:

[t]he defendant's decision was made for an improper purpose, namely to hinder the plaintiff's prosecution of the proceedings and proposed proceedings that are on foot.

84 Allegations of improper purpose frequently fail for lack of evidence.[71] This is especially the case where the allegation is one that involves a personal attack on the honesty of the decision maker.[72] In this respect I accept Mr Wise's submission that there is an insufficiency of evidence to support the ground.

85 The ground of improper purpose is not, however, limited to decisions made fraudulently or in bad faith.[73] Where a decision maker takes an irrelevant consideration into account a consequence of that error may be that the decision has, innocently, been made for a purpose that is not authorised by the empowering statute. Conversely, a court may find that in the circumstances the taking into account of an irrelevant consideration has had no bearing on the purpose for which the power was exercised.

86 I am satisfied that it is at least arguable that if Mr Wise took Mr Knight's status as a vexatious litigant into account, and if in so doing he had regard to an irrelevant consideration, then that fact is reflective of the purpose for which the decision was made. A court might well find that such a purpose was not one authorised by the statute creating the power.

87 It will fall to the Judge hearing the proposed proceedings to ascertain the purpose for which the power may legitimately be exercised and the nature and extent of the power itself. This will inevitably involve recourse to the subject matter, scope and purpose of the relevant legislation, in this case the Corrections Act.[74] These are significant questions of law that the parties did not address before me. It is appropriate that they are properly ventilated before they are determined.

88 It follows that I am satisfied that this aspect of the proposed proceedings would not be foredoomed to fail.

89 Mr Knight seeks prerogative relief in the nature of certiorari and mandamus. He also seeks declaratory relief. In addition to his submissions on the individual grounds Mr Wise submits the proposed proceedings are foredoomed to fail as the relief Mr Knight claims is not available to him. These submissions focussed on the remedies of mandamus and declaration. It was not argued that an order in the nature of certiorari could not be made where any or all of the proposed grounds were made out.

90 Mr Wise submits the decision is not amenable to mandamus. He relied on Smith v Commissioner of Corrective Services[75] as authority for the proposition that an order in the nature of mandamus could not issue to remedy a breach of the common law right of unimpeded access to the Courts. Having determined that that ground is foredoomed to fail for lack of evidence it is not necessary to consider the matter.

91 More generally, at the hearing of the application Mr Wise submitted mandamus could not issue as there 'is no statutory duty on the part of the deputy commissioner either to give Mr Knight access to an in cell computer nor indeed to make formal decisions about whether or not he has access.'

92 The first aspect of that submission is plainly correct. While mandamus may compel the performance of a public duty according to law, it will not compel the performance of the duty in a particular way where the relevant authority has a discretion in the matter.[76]

93 In Coulston v Wise Justice Williams considered the availability of mandamus in the context of an application for an in-cell computer by a prisoner at Barwon Prison. Relevantly her Honour held that:

Mandamus is not available to compel the [authority] to grant Mr Coulston's request for an in-cell computer, when the [authority] has no duty to provide him with one and Mr Coulston does not have any corresponding right.[77]

94 Similarly, in Knight v Money Justice Byrne found an earlier decision to refuse Mr Knight access to an in-cell computer was probably not amenable to mandamus. His Honour observed:

We are not here dealing with a prisoner's legal right or the Commissioner's legal duty to have or to permit prisoners to purchase a computer or to have it in their cell.[78]

95 In the absence of such a right, or corresponding duty, an order in the nature of mandamus could not compel the Deputy Commissioner to grant Mr Knight an in-cell computer.

96 A separate question is whether an order in the nature of mandamus could compel Mr Wise to reconsider the application. I note that in Knight v Wise Justice Hollingworth granted limited leave to commence proceedings seeking relief in the nature of certiorari and mandamus.[79] There, as here, mandamus was sought to compel the proposed defendant to reconsider the proposed plaintiff's application for access to an in-cell computer according to law.[80]

97 As I have said, the nature and extent of the relevant decision making power is a significant, and unresolved, legal issue. It may be that its statutory context is such that it is coupled with a corresponding duty to hear and determine applications of the kind in this case. In other words:

...there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so.[81]

98 If such a duty existed the relevant question would become whether the Deputy Commissioner, no doubt acting as delegate of the Secretary to the Department of Justice, failed to perform it. In this case there was no actual failure to exercise the power. Mandamus is also, however, available to remedy a constructive failure to exercise jurisdiction.[82] In other words, an order in the nature of mandamus may issue where the purported performance of the duty is invalid.[83]

99 If Mr Wise took into account an irrelevant consideration or exercised the power for an improper purpose the decision would almost certainly be affected by jurisdictional error.[84] It follows that proceedings that sought relief in the nature of mandamus on these grounds would not be foredoomed to fail.

100 In addition to relief in the nature of certiorari and mandamus Mr Knight seeks declaratory relief in the following terms:

3. ...that a prisoner's status as a declared vexatious litigant does not affect his common law right of unimpeded access to the courts...

4. ...that a prisoner's common law right of unimpeded access to the courts encompasses having meaningful access to the means of producing court documents...

101 Alternatively, he seeks 'such other declaration as the court thinks fit.'

102 The making of a declaration is an inherent and discretionary power of superior courts that 'is neither possible nor desirable to fetter...by laying down rules as to the manner of its exercise'.[85] Nonetheless, in Ainsworth v Criminal Justice Commission[86] the High Court restated the longstanding principle that declaratory relief:

...is confined by the considerations which mark out the boundaries of judicial power. Hence declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions.[87]

103 Before a declaration may be given, there must be a real dispute as to the legal rights as between the parties.[88] An applicant for declaratory relief does not have standing if the declaration is 'claimed in relation to circumstances that [have] not occurred or might never happen'.[89] In the prison context it has been observed that declaratory relief is inappropriate 'except in circumstances where there is a dispute, the facts are established and a finding is made.'[90]

104 It would not be open to the Court hearing the proposed proceedings to make declarations in the terms Mr Knight now proposes. They are vague, hypothetical, and do not join a statement of law with the circumstances arising in this case. Mr Knight could not seek declaratory relief concerning the common law right of access to the courts where the evidence does not support a finding that the right has been breached. That is not, however, the end of the matter.

105 In Knight v Hastings & Anor Mr Knight sought a declaration in terms substantially similar to the declaration now sought at paragraph 4 of his originating motion. It was Justice Robson's view that such a declaration would probably not be available.[91] Noting that it was customary for claims for equitable relief to include a claim for such other relief as the court thinks fit, his Honour held the application could be amended and a court could 'grant a declaration or declarations that deal with the actual legal controversies that have arisen in Mr Knight's lengthy attempts to have access to an in cell personal computer'.[92] Justice Robson therefore held that it could not be said that the application for declaratory relief was foredoomed to fail.[93]

106 President Maxwell endorsed the flexibility of this approach in The Commissioner, Corrections Victoria v Knight & Anor.[94] The Court of Appeal refused the Commissioner's application for leave to appeal subject to Mr Knight confining his "claim to an application for 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 for the purposes of prosecuting the three substantive applications."[95]

107 Mr Knight did not commence proceedings seeking this limited declaratory relief. Instead he appears to have made a renewed request for permission to purchase an in-cell computer.[96]

108 I adopt Justice Robson's approach. In addition to leave in respect of the grounds in paragraphs 2(e) and 2(h), I will grant leave to commence proceedings seeking one or more declarations provided they are amended to address the actual legal controversies arising in this case. I will not dictate their terms and leave the matter to the Court that is to hear the proposed proceedings.

109 There is sufficient material before the Court to justify the granting of leave to issue the proposed proceedings on the limited grounds that I have identified. Whether the plaintiff will succeed will depend on the evidence that is led. I am satisfied, however, that these limited proposed proceedings are not foredoomed to fail and are not otherwise an abuse of process. I am also not persuaded that there is any discretionary basis for refusing to grant leave.

110 I grant leave to commence proceedings seeking the relief set out at paragraph 2 of the plaintiff's originating motion on grounds (e) and (h), and also declaratory relief in accordance with paragraph [108] above.

[2] Knight v Money [2009] VSC 242; Knight v Hastings & Anor [2010] VSC 99; The Commissioner, Corrections Victoria v Knight (2010) 31 VR 567; Knight v Wise [2011] VSC 313; Knight v Deputy Commissioner, Corrections Victoria [2012] VSC 506; Knight v Hastings; Knight v Wise [2012] VSCA 315; Knight v Wise (No. 2) [2013] VSC 339.

[3] I shall refer to these affidavits where necessary as 'the first Knight affidavit', 'the second Knight affidavit' and 'the third Knight affidavit' respectively.

[4] Referred to respectively as 'the Wise affidavit', 'the first Neuendorff affidavit' and 'the second Neuendorff affidavit'.

[5] See Phillip Morris Ltd v Attorney-General (Vic) [2006] VSCA 21; (2006) 14 VR 538 at [12]- [13].

[9] At [20]; see also, Knight v Wise [2011] VSC 313 at [11].

[10] Above n 5, at [42]; Knight v Anderson (2007) 16 VR 352 at [7]; see also above n 1, at [41].

[11] Above n 5, at [118] (Ormiston JA) and [153] (Eames JA); Knight v Wise [2011] VSC 313 at [14].

[12] Above n 5, at [121] (Ormiston JA).

[13] Above n 5, at [12]; see also, Knight v Corrections Victoria; Knight v Anderson [2009] VSC 607.

[14] Knight v Money [2009] VSC 242 at [8]; see also, Coulston v Wise & Ors [2010] VSC 135 at [20].

[16] See the comments of Justice Byrne in Knight v Money [2009] VSC 242 at [9].

[17] 'The Commissioner's Requirement', Exhibit 'JK-1' to the first Knight Affidavit.

[18] In some limited cases applications will require approval by the Commissioner rather than their Deputy.

[19] Exhibit 'JK-2' to the first Knight Affidavit.

[20] Exhibit 'JK-3' to the second Knight Affidavit.

[21] Exhibit 'RW-2' to the Wise Affidavit; Exhibit 'JK-4' to the second Knight Affidavit.

[22] Exhibit 'RW-3' to the Wise Affidavit.

[23] Raymond v Honey [1983] 1 AC 1; Rich v Groningen (1997) A Crim R 272 at 287-288; R v Secretary of State for the Home Department; ex parte Leech (No 2) [1993] EWCA Civ 12; [1994] QB 198 at 216; Knight v Wise [2011] VSC 313 at [14].

[24] Brazel v Westin & Anor [2013] VSC 527 at [21].

[27] Knight v Deputy Commissioner, Corrections Victoria [2012] VSC 506; Knight v Wise [2011] VSC 313; Knight v Hastings & Anor [2010] VSC 99.

[30] Mr Wise submits the right is concerned only with 'complete barriers' to access to a court. Mr Knight, on the other hand, submits the right can be breached by an impediment that falls short of a complete barrier to access. It is not necessary to resolve this question here.

[33] The first and second Neuendorff affidavits.

[35] Dietrich v R [1992] HCA 57; (1992) 177 CLR 292 at [2] (Gaudron J).

[36] Victoria Police Toll Enforcement v Taha [2013] VSCA 37 at [205].

[37] Ragg v Magistrates Court of Victoria [2008] VSC 1; (2008) 18 VR 300 at [45]- [51].

[38] Brazel v Westin [2013] VSC 527 at [21].

[39] Kracke v Mental Health Review Board [2009] VCAT 646; (2009) 29 VAR 1.

[41] Slaveski v Smith [2012] VSCA 25; (2012) 34 VR 206 at [52].

[42] DAS v Victorian Human Rights and Equal Opportunity Commission [2009] VSC 381; (2009) 24 VR 415.

[43] Kracke v Mental Health Review Board [2009] VCAT 646; (2009) 29 VAR 1.

[44] See, for example, above n 38, at [27].

[47] Although it seems the concession was that there had been a failure to comply with the hearing rule of natural justice and was silent on the issue of irrelevant considerations.

[49] Knight v Deputy Commissioner, Corrections Victoria [2012] VSC 506; affirmed in Knight v Hastings; Knight v Wise [2012] VSCA 315.

[50] Knight v Deputy Commissioner, Corrections Victoria [2012] VSC 506, at 47.

[52] See, for example, Knight v Deputy Commissioner, Corrections Victoria [2012] VSC 506 at [49]

[54] See East Melbourne Group Inc v Minister for Planning [2008] VSCA 217; (2008) 23 VR 605 at [183].

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

[56] This form was annexed to the Commissioner's Requirement, which in turn was exhibited to the first Knight Affadavit.

[57] Each of these are circumstances to which the decision maker may, or must, have regard in making a decision under the Commissioner's Requirement.

[58] Knight v Wise [2011] VSC 313 at [62].

[61] Knight v Hastings; Knight v Wise [2012] VSCA 315.

[62] At [56]; the Court of Appeal also noted that 'His Honour appear[ed] to have misspoken in referring to 'a specific and narrowly-worded privilege concerning access to in-cell computers'. It is apparent from the context that he intended to refer to shared unit computers.'

[65] Subject to the principles of waiver and necessity, the ground of apprehended bias will be made out where the parties or the public might reasonably apprehend that the relevant authority had not brought an impartial mind to the making of the decision: Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-294; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344; Minister for Immigration v Jia Legeng (2001) 205 CLR 507.

[66] Laws v Australia Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 88-89; Metropolitan Fire and Emergency Services Board v Churchill [1998] VSC 51 at [144].

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