Knight v Assafiri

[2020] VSC 439

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S ECI 2019 03572

JULIAN KNIGHT	Proposed Plaintiff
v
ALI ASSAFIRI (in his capacity as Acting Deputy General Manager of Port Phillip Prison)	Proposed Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers, pursuant to s 63 of the Vexatious Proceedings Act 2014 (Vic)
DATE OF JUDGMENT:	21 July 2020
CASE MAY BE CITED AS:	Knight v Assafiri
MEDIUM NEUTRAL CITATION:	[2020] VSC 439

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PRACTICE AND PROCEDURE – General litigation restraint order – Application for leave to commence proceeding seeking declarations against prison manager – Common law right of access to the courts – Whether proposed proceeding shown to be not vexatious or to have reasonable grounds – Application refused – Vexatious Proceedings Act 2014 (Vic), ss 54, 55, 56.

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APPEARANCES:	Counsel	Solicitors
For the Proposed Plaintiff	No appearance
For the Proposed Defendant	No appearance

HER HONOUR:

1. Julian Knight is a prisoner at Port Phillip Prison where he is serving a life sentence for seven counts of murder and 46 counts of attempted murder, committed by him at Hoddle Street, Clifton Hill on 9 August 1987.[1] In 2004, he was declared a vexatious litigant pursuant to s 21 of the Supreme Court Act 1986 (Vic).[2]   Since 2016, Mr Knight has been subject to an indefinite general litigation restraint order made under the Vexatious Proceedings Act 2014 (Vic), which precludes him from commencing a proceeding in any Victorian court or tribunal, without leave.[3]  

   [1]R v Knight [1989] VR 705.

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

   [3]Attorney- General for the State of Victoria v Knight [2016] VSC 488.

1. Mr Knight has applied under s 54 of the Vexatious Proceedings Act for leave to commence a proceeding in the Supreme Court against Ali Assafiri, the Acting Deputy Manager of Port Phillip Prison. The proposed proceeding is a claim for the following declarations:

1.   A declaration that the instruction by the defendant to prison staff at Port Phillip Prison that requests by the plaintiff to fax or email legal documents to the courts or to lawyers must first be submitted to a unit supervisor and then to a prison manager, amounts to an impermissible “prior ventilation” rule that infringes the plaintiff’s common law right of unimpeded access to the courts.

2.   A declaration that the instruction of the defendant to prison staff at Port Phillip Prison that requests by the plaintiff to print documents must be restricted to the monthly printing of legal documents contained on the laptop computer that the plaintiff has been given access to, as opposed to the entitlement of other prisoners to have legal and non-legal documents printed on a twice weekly basis, amounts to an impermissible impediment to the plaintiff’s common law right of unimpeded access to the courts.

3.   A declaration that the failure of the defendant to restore the Port Phillip Prison library’s computer server containing the library’s electronic legal resources (Butterworths Unreported Judgments & Thomson Lawbook Co databases) since 29 November 2017, amounts to a breach of the plaintiff’s common law right of unimpeded access to the courts.

4.   A declaration that the decision of the defendant to remove the ability of the computers in the Port Phillip Prison library to view legal video or audio files amounts to an impermissible impediment of the plaintiff’s common law right of unimpeded access to the courts.

5.   A declaration that the failure of the defendant to maintain the Port Phillip Prison library’s legal texts as dictated by the Commissioner of Corrections Victoria amounts to a breach of the plaintiff’s common law right of unimpeded access to the courts.

1. Under s 55 of the Vexatious Proceedings Act, the Court may grant leave to commence a proceeding if it is satisfied that the proceeding is not a vexatious proceeding, and that there are reasonable grounds for the proceeding. As an applicant for leave, the onus is on Mr Knight to establish both of these elements.[4]

   [4]Knight v Thomas [2015] VSC 283, [25].

1. A ‘vexatious proceeding’ is defined in s 3 to include:

(a)        a proceeding that is an abuse of the process of the court or tribunal;

(b)       a proceeding commenced to harass or annoy, to cause delay or detriment, or for another wrongful purpose;

(c)        a proceeding commenced or pursued without reasonable grounds;

(d)       a proceeding conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

1. There are reasonable grounds for a proposed proceeding if the applicant for leave establishes a ‘real or reasonable prospect’ that the claim for relief can succeed.[5]

   [5]Knight v Corrections Commissioner [2016] VSC 50, [97], [100].

1. Section 56 of the Vexatious Proceedings Act requires a person subject to a litigation restraint order who applies for leave to proceed to disclose a number of matters to the court or tribunal in which the application is made. Relevantly here, s 56(1)(e) required Mr Knight, in his affidavit in support of his application, to disclose all facts material to the application known to him. An application for leave to proceed may be determined on the basis of written submissions, without notice to the proposed defendant and without any appearance or oral hearing.[6]  The application and affidavit in support should therefore ‘be comprehensive and should speak for itself from the outset’.[7]

   [6]Vexatious Proceedings Act 2014 (Vic), ss 59, 60, 63.

   [7]Knight v Sellman [2020] VSC 320, [45].

1. It is a principle of the common law that people should have effective access to the courts.[8]  The principle has application in various contexts, including in statutory interpretation, and in relation to criminal and civil proceedings.  However, for the reasons explained by Cavanough J in Knight v Sellman,[9] there is no free-standing ‘common law right of unimpeded access to the courts’.  Rather, it is a feature of the due administration of justice that a person should have effective access to the courts in order to enforce some legal, equitable, or statutory right, or to defend a proceeding.[10]

   [8]Knight v Wise [2014] VSC 76 (Knight v Wise), [38] citing Brazel v Westin [2013] VSC 527, [21].

   [9][2020] VSC 320.

   [10]Knight v Sellman, [197]–[202], citing Commissioner of Corrective Services v Liristis(2018) 98 NSWLR 113, [66]-[69], [71]–[79], [104]–[107], [110] (Basten JA) (citations omitted) and Proudfoot v Director of Public Prosecutions [2020] VSCA 138, [48]. I am indebted to Cavanough J for the comprehensive examination of the authorities undertaken in Knight v Sellman at [185]–[214], in particular his Honour’s exposition of the reasoning of the New South Wales Court of Appeal in Liristis.

1. Further, the power of the Supreme Court of Victoria to make a declaration is not at large; it may be exercised only as necessary for the administration of justice, according to law.[11]  The declarations sought by Mr Knight could only be made in order to determine a legal controversy between the parties to the proposed proceeding, and only on a proper factual foundation.[12] 

   [11]Knight v Sellman, [187], citing Liristis, [64]–[65] (Basten JA).

   [12]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581–2 (Mason CJ, Dawson, Toohey and Gaudron JJ); Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319, [103].

1. Here, the factual foundation for the proposed proceeding is sparse.  In relation to the first declaration, Mr Knight deposed:

Prisoners at [Port Phillip Prison] are able to have legal documents faxed or emailed to the Courts or to lawyers at the prison’s Government Functions building.  Prisoners approach unit staff with a request to attend the Government Functions building for the purpose of having legal documents faxed or emailed.  Unit staff then telephone the Government Functions building to determine whether the time suitable and, if so, the prisoner is issued a movement slip to attend the building.

The defendant has issued an instruction to prison staff that any request by the plaintiff to attend the Government Functions building for the purposes of faxing or emailing legal documents must first be submitted to a unit supervisor, who then must refer it to a prison manager for approval.  This instruction applies, and has only been applied to, the plaintiff.

1. This appears to be no more than a complaint that requests by Mr Knight to send a legal document outside the prison are dealt with differently from requests made by other prisoners.  He does not depose that he has been prevented from sending any legal document to a court or to his lawyers, or that prison management is vetting his legal documents before they are sent.  He does not suggest that Mr Assafiri’s instruction has impeded his access to the courts, or even that it has inconvenienced him.[13]  The situation outlined in Mr Knight’s affidavit does not resemble the ‘prior ventilation rule’ that at one time applied in prisons in the United Kingdom, requiring that complaints or grievances raised by prisoners first be investigated within the prison system.[14]

   [13]Although ‘mere inconvenience’ would be insufficient to justify the Court’s intervention:  Knight v Wise, [26].

   [14]R v Secretary of State for the Home Department, ex parte Anderson [1984] QB 778, 789–90. The policy underpinning the rule was that it was more efficient to enable prisons to address the issue and provide an immediate remedy, and also had the effect of ‘preventing, or limiting, wild allegations against prison officers’. The rule was abandoned by the Home Office following the decision of the European Commission of Human Rights in Silver v United Kingdom (1980) 3 EHRR 475.

1. Mr Knight’s affidavit provides no details at all of the factual foundation for the remaining declarations sought.

1. Mr Knight has not identified any legal, equitable, or statutory right that he seeks to enforce against Mr Assafiri — or any other person — in respect of which he requires access to any particular court or tribunal, or to the courts in general.  His application and affidavit disclose no legal controversy that could be resolved by the declarations he wishes to seek.  I am not satisfied that the proposed proceeding is not a vexatious proceeding, or that there is a real or reasonable prospect that his claim for relief can succeed.  His application for leave to commence the proposed proceeding must therefore be refused.