Proposed Plaintiff v Proposed Defendant

1 The proposed plaintiff, Mr Julian Knight, is currently serving a life sentence at Port Philip Prison for murders committed on 9 August 1987. He was declared a vexatious litigant on 19 October 2004,[1] and since 30 August 2016 has been subject to an indefinite general litigation restraint order.[2]

2 On 23 May 2019, Mr Knight filed an application for leave to commence a proceeding in which he seeks:

A declaration that in the circumstances the plaintiff's common law right to unimpeded access to the Court entails access to computer facilities, as was provided to the plaintiff by the defendant from 8 December 2017 to 15 January 2018, including access to printing facilities.

3 The only issue before the Court is whether leave should be granted. For the following reasons, Mr Knight's application should be dismissed.

4 In accordance with s 54 of the Vexatious Proceedings Act 2014 (the Act), a person subject to a general litigation restraint order may apply to the Court to commence or continue a proceeding. 'Proceeding' is defined in s 3 to mean:

any matter in an Australian court or tribunal, whether civil or criminal, including -

(a) any cause, matter, action, suit, proceeding, trial, complaint or inquiry of any kind within the jurisdiction of an Australian court or tribunal;

(b) any proceeding (including any interlocutory application) taken in connection with or incidental to a proceeding before an Australian court or tribunal;

(c) any appeal, review or other challenge, including an application for judicial review or an application for leave to appeal.

5 Section 55 of the Act provides that a Court may grant leave if it is satisfied that the proceeding is not a vexatious proceeding and there are reasonable grounds for the proceeding. In making an application, a person must disclose the following details:

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

(e) details of each application for leave to commence or continue a proceeding made by the person under section 21 of the Supreme Court Act 1986, as in force immediately before its repeal;

(f) details of each interlocutory application made or proceeding commenced or conducted by the person -

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

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

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

(h) all other facts material to the application, whether in support of or adverse to the application, that are known to the person.[3]

6 The Court is afforded the power in s 58 of the Act to dismiss an application for leave to proceed if it is not satisfied that the application is materially different to a previous application made by that person. The definition of 'application for leave to proceed' includes an application under s 54 of the Act by a person subject to a general litigation restraint order for leave to commence or continue a proceeding.[4] In accordance with s 63 of the Act, the Court can determine an application for leave to proceed on the basis of written submissions.

7 Mr Knight's application concerns access to computer and printing facilities at Port Phillip Prison. It is supported by six affidavits:

(a) Affidavit of Julian Knight affirmed 4 April 2019 (the first affidavit);

(b) Further Affidavit of Julian Knight affirmed 4 April 2019 comprising ten paragraphs (the second affidavit);

(c) Further Affidavit of Julian Knight affirmed 4 April 2019 comprising eight paragraphs (the third affidavit);

(d) Further Affidavit of Julian Knight affirmed 4 April 2019 comprising twenty paragraphs (the fourth affidavit);

(e) Further Affidavit of Julian Knight affirmed 21 May 2019 (the fifth affidavit).

8 The first four affidavits are the same as those relied upon by Mr Knight in Knight v Wilson; Knight v Adult Parole Board; Knight v Adult Parole Board.[5] As is summarised in that case, they depose to numerous matters, including:

(a) that Mr Knight was provided with a laptop computer and a copy of his computer account on CD-ROM between 8 December 2017 to 15 January 2018. This coincided with a period that Port Phillip Prison was in total lockdown and the prison library was not open;

(b) that Mr Knight is attempting to prepare for various legal proceedings;

(c) a large number of previous applications for leave to commence proceedings brought by Mr Knight. Of these, Mr Knight identified five proceedings which he viewed as 'similar to the declaratory relief sought in the present proceeding'. He deposes, however, that 'the factual basis for the order sought in the present proceeding is materially different to that in the previous proceeding'.

9 While the first affidavit identifies the three proceedings in Knight v Wilson as 'current proceedings' listed for trial in May 2018, it does not refer to the interlocutory applications subsequently brought in those proceedings. The interlocutory applications were discussed at a hearing on 30 October 2018. At that time, Mr Knight, counsel for the respondents in the Knight v Wilson proceedings, and counsel for Mr Castle in the current proceeding appeared before the Court, and it was not controversial that the Knight v Wilson interlocutory applications were to proceed on the basis of the written materials provided by Mr Knight.[6]

10 In the fifth affidavit, Mr Knight deposes that, since filing his last affidavit in this proceeding, Mr Knight has filed 'three more proceedings' in this Court. Those proceedings are not identified. Further, it states that on 28 March 2019 Mr Knight submitted a Prisoner Request Form requesting access to a computer on an in-cell basis, which request was subsequently not approved. Another Prisoner Request Form was submitted on 9 April 2019 requesting reactivation of the CD drive on the laptop computer that Mr Knight had access to, or the copying of legal CDs onto that computer. That request was also refused.

11 Shortly before judgment in this matter was to be delivered, Mr Knight filed with the Court a further affidavit dated 21 January 2020 (the sixth affidavit). Mr Knight referred to the previous provision to him by prison management of a laptop computer and various communications with prison management about that matter. Relevantly, he also deposed to a number of events said to have occurred since 21 November 2019:

(a) On 29 November 2019, Mr Knight was informed that prison management had decided that he would no longer have access to a laptop computer because all of his proceedings were civil in nature. Mr Knight states that he was last permitted to use the laptop computer on 21 November 2019.

(b) On 1 December 2019, Mr Knight submitted a prisoner request form in which he requested continued access to the laptop computer to enable preparation for his various legal proceedings. On 4 December 2019, this request was 'not approved' by the Deputy General Manager of Port Phillip Prison.

(c) On 6 December 2019, Mr Knight submitted an application for access to a personal computer and associated rental deduction authority. He deposes that neither of these applications were processed by prison management.

(d) On 19 December 2019, Mr Knight submitted a prisoner request form in which he requested temporary access to the 'laptop computer in order to update legal + personal files before they are copied onto DVD by IT'. This request was 'not approved' on 30 December 2019. Mr Knight deposes that he was instructed to resubmit an 'Application for Access to a Personal Computer'.

(e) On 31 December 2019, Mr Knight deposes that he submitted another 'Application for Access to a Personal Computer'. He refers to his 'understanding' that his application is not supported by Port Phillip Prison and has been rejected by Corrections Victoria.

12 As an initial matter, it is to be noted that Mr Knight's affidavit material does not identify in detail the interlocutory applications that he brought in Knight v Wilson. As noted, those applications, which were discussed before the Court on 30 October 2018, relied upon affidavit material affirmed 4 April 2019. In each interlocutory application Mr Knight sought a declaration:

That in the circumstances [his] common law right to unimpeded access to the Court entails access to computer facilities, as was provided to him by [Mr Craig Castle, in his capacity as General Manager of Port Philip Prison], from 8 December 2017 to 15 January 2018, including access to printing facilities.[7]

13 It is evident that the declarations sought were in the same terms as that currently before the Court. The Court dismissed the applications, delivering reasons after Mr Knight filed the fifth affidavit in this proceeding. However, the interlocutory applications were on foot at the time that Mr Knight affirmed his fifth affidavit in this proceeding, and while the fifth affidavit refers to the filing of 'three more proceedings' since the filing of the fourth affidavit, no further detail is provided. As such, a question arises as to whether s 56(1)(a) of the Act is satisfied.

14 However, even if it is assumed that the disclosure provisions were established, the Court is not satisfied for the purposes of s 58 that the current application is materially different to previous applications brought by Mr Knight. As is set out in Knight v Wilson, of particular significance in this regard are Knight v Wise,[8] Knight v Adult Parole Board,[9] Knight v Wise,[10] Knight v Corrections Commissioner[11] and Knight v Corrections Commissioner[12]. Mr Knight deposes that, in the first two of those proceedings, he brought an interlocutory application seeking that the prison authorities provide him with 'the means of producing documents on a 7-days-a-week basis (i.e. a personal "in-cell" computer)'. In the third of the five identified proceedings, Mr Knight applied for leave to bring an interlocutory injunction seeking access to a computer on a 7-days-a-week basis, for the duration of the instant proceeding'. In Knight v Corrections Commissioner[13] and Knight v Corrections Commissioner,[14] injunctions were brought by Mr Knight seeking that he be provided with the means of producing court documents and of examining his legal materials held in electronic format, which he deposes related to accessing computer facilities. Regarding the five proceedings identified, Mr Knight states that:

(a) in the proceedings to which two of the interlocutory applications relate,[15] the references to an 'in-cell' computer should be taken to refer to proceedings concerning permission to purchase a computer; and

(b) while the application for relief, or interlocutory relief, in each proceeding is similar to the declaratory relief sought in the current proceeding, 'the factual basis for the order sought in the current proceeding is materially different to that in the previous proceeding'.

15 Regarding the first proposition, the two substantive proceedings referred to by Mr Knight do appear to relate to the purchase of an in-cell computer.[16] However, the detail of the orders sought is not set out in Mr Knight's second affidavit and further, the associated interlocutory applications identified by Mr Knight concerned injunctions for 'the prison authorities to provide' him with a personal in-cell computer 7 days per week' and 'on 7-days-a-week basis, for the duration of the instant proceeding' respectively. In effect, the computer access sought in at least the first interlocutory application identified is substantially the same as the access that Mr Knight currently seeks.

16 Mr Knight's second assertion, that the factual basis for the current application is materially different to that in the five previous proceedings, should be rejected for the reasons provided in Knight v Wilson.[17] Moreover, it is apparent that the declaration sought and dismissed in that case is in the same terms as the declaration Mr Knight currently seeks. Although that was an interlocutory application, it still falls within the definition of 'application for leave to proceed' as that phrase is defined in s 3 and used in s 58.

17 Mr Knight has failed to establish for the purposes of s 58 of the Act that the current proceeding is materially different to the previous five proceedings specifically identified and Knight v Wilson. His application for leave to commence this proceeding must accordingly be dismissed.

[1] Attorney-General v Knight [2004] VSC 407.

[2] Attorney-General v Knight [2016] VSC 488.

[3] Vexatious Proceedings Act 2014 s 56(1).

[4] Vexatious Proceedings Act 2014 s 3.

[5] [2019] VSC 373 ('Knight v Wilson').

[10] Proceeding number S CI 2013 03623.

[11] [2015] VSC 545.

[12] [2016] VSC 50.

[13] [2015] VSC 545.

[14] [2016] VSC 50.

[15] Knight v Wise (SCI 2012 4160) (Kyrou J) and Knight v Wise (S CI 2013 3623) (T Forrest J).

[16] Knight v Wise [2012] VSC 506; Knight v Wise [2014] VSC 76.

[17] Knight v Wilson (n 5) [37], [39] and [41].