Knight v Attorney-General for the State of Victoria
[2009] VSC 287
•1 July 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 9420 of 2003
| JULIAN KNIGHT | Plaintiff |
| V | |
| ATTORNEY GENERAL FOR THE STATE OF VICTORIA | Defendant |
---
JUDGE: | BYRNE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 July 2009 | |
DATE OF JUDGMENT: | 1 July 2009 | |
CASE MAY BE CITED AS: | Knight v Attorney-General (Victoria) | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 287 | |
---
COURTS – order restraining publication of a proceeding – application for revocation of vexatious litigant order – whether necessary in order not to prejudice the administration of justice – application refused
PRACTICE and PROCEDURE
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendant | Mr P.G. Golombek | Corrections Victoria |
HIS HONOUR:
Mr Knight seeks an order that I restrain publication of the material filed in his application for discharge of the vexatious litigant order and of the proceeding itself.
The power to make a restraining order of the kind that is requested is conferred by s.18 of the Supreme Court Act 1986. There are various types of orders that may be made but in each case the statute makes it clear that it is a power which is to be exercised only to achieve one or other of the objectives mentioned in s. 19. This section sets the objectives for which the power may be exercised, but it is introduced by the following words:
The court may make an order under section 18 if in its opinion it is necessary to do so in order not to ….
So it is not a question whether it is desirable or for some reason I think it is a good idea to exercise the power. It must be necessary to do so in order to achieve one or other of the objectives, most of which have nothing to do with the present matter. The one nearest to it is “in order not to… (b) prejudice the administration of justice”. The difficulty which the present application must address is that the order that Mr Knight seeks is not necessary in order to avoid prejudice to the administration of justice.
The administration of justice here concerns an application by Mr Knight to have the order declaring him a vexatious litigant revoked. That is an application which will be dealt with in due course on the material before the Court. I see no reason to think that the administration of justice, inasmuch as it concerns this application, will be adversely affected by the responsible and proper publication of the proceeding. The proceedings in this Court are, as we all know, conducted in the public arena by long tradition and for very good reason.
Accordingly the application will be dismissed.
I have now heard Mr Knight’s application is for an order pursuant to section 21(5) of the Supreme Court Act 1986 revoking an order made on 19 October 2004 declaring him to be a vexatious litigant. The application is opposed by the Attorney‑General for the State of Victoria.
At the outset Mr Knight asked that I excuse myself because I had heard and rejected an application made by him on 1 June. This was an application for leave to commence a proceeding against the Assistant Commissioner of Corrections, Brendan Money, with the object of overturning a decision of the correction authorities which denied him a computer in his cell. He said that the present application was connected to the facts of the earlier leave application. I declined to excuse myself on the basis that the mere rejection of an application of this sort did not provide a basis for inferring bias or apprehended bias.
The leave application is indeed connected to the present application in an important sense. The decision of the Corrections authorities to refuse Mr Knight's request was conveyed to him in Mr Money's letter dated 2 March 2009. In it he gives, as reasons, that Mr Knight did not fall within the eligibility criteria for prisoners to have an in cell computer.
In his affidavit, sworn 7 April 2009, Mr Money added that the fact that there was in existence a vexatious litigant declaration with respect to Mr Knight showed
Mr Knight's lack of good judgment. This, Mr Knight said, was an example of the use of the vexatious litigant order by the Corrections authorities to his disadvantage.
In his oral argument he said candidly that if the vexatious litigant order had not been used in this way, he would not be making the present application.
The principles which I must apply in considering this application are not in doubt. I may do so where I am persuaded that the circumstances have so changed from those prevailing at the time the order was made in October 2004 that there is no real risk of the defendant engaging further in conduct of the kind that attracted the making of the order.
A number of things should be said about the statement of principle. First, the onus lies on the applicant for revocation. Second, it may be possible in the appropriate case, that the effluxion of time itself will entitle the court to infer that the required circumstances exist.
Mr Knight argued that other circumstances may warrant revocation. He said that such a circumstance in this case was that the burden of the continuance of the order upon him outweighed the utility of its continuance. I do not think that this would be a sufficient consideration absent that set out in the statement of principle above.
The fact that the order is a burden for the person subject to it, even in a prison environment, is the price that person must pay for the burden which he or she has imposed upon the justice system and on the persons who have been or might in the future be vexed by the groundless proceedings which the order is intended to prevent.
I have in my earlier judgment of 2 June made mention of the need to be aware that Mr Knight is self represented. One aspect of this is that an application bought by such a person might indicate a failure to understand legal and procedural principle rather than indicate an obdurate obsession to pursue a hopeless cause.
This is a matter on which I have been particularly mindful in the present case where I have been asked to look at the two examples of proceedings for which leave was sought since 2004.
I turn then to this case. There are nine grounds for the revocation offered in the summary. These may be dealt with under a number of headings. First, Mr Knight's resort to the courts since October 2004 does not suggest that he would in the future abuse a citizen's right to approach the courts.
He has sought to commence a proceeding only twice. The first in 2007 was partly successful in that leave was given in respect of two of the matters before the court. Having obtained this leave, Mr Knight has not yet exercised the right to commence the proceeding although he tells me that he is now minded to do so. Given his partial success in 2007, it cannot be said that this application was an indication that he would bring in the future unfounded claims.
The second application was that before me last month with respect to this in cell computer. I rejected the application. Nevertheless whilst it seemed to be without legal foundation, I am unable to conclude that it itself represented a return to Mr Knight's pre 2004 conduct. But this said it is for him to demonstrate a change in his attitude and behaviour. The fact that he has not habitually or persistently sought to bring groundless applications for leave is not determinative of this issue.
Mr Knight told me that he had in mind bringing three proceedings in the near future. First, was an appeal against my order of 1 June. He has not yet filed a notice and his capacity therefore to bring this appeal must depend upon a dispensation from the Court of Appeal. In any event it is not a matter which requires leave under section 21 so that the order is not in any way an impediment to his rights in this regard.
The second was to activate the proceedings for which leave had been granted in 2007. Again the presence of the vexatious litigant order is no bar to this.
He said too that he was contemplating bringing proceeding for which leave was denied in 2007. This will require leave.
In various ways Mr Knight said that the existence of the order was and is likely to be in the future an instrument of oppression used against him by the Correction authorities. The in cell computer incident was offered as an example. I do not see this as a reason to revoke the order. If authorities are acting inappropriately, as to which I make no finding, this is a matter which may be taken up through the appropriate channels.
Next it was said that the existence of the order imposed an unreasonable burden on his right of access to the court and that the court had other procedures available to it to protect itself from claims which are an abuse of its process. I am not persuaded that this is a good reason. As I explained in argument, the vexatious litigation order puts in place a filter upon his right to bring a proceeding. It will only be those which are seen to be groundless or doomed to fail which will be filtered out. This is not a ground for concern.
Finally, Mr Knight returned to the fundamental point that he is not likely to offend if the order is removed. It is for him to demonstrate this. In my opinion he has failed to do so. While it may be correct that he has not brought in the period since 2004, proceedings which may be treated as groundless, he has offered no positive evidence which leads me to conclude that he will not once again continue his pre 2004 litigation behaviour if the order were revoked.
Now, in the circumstances therefore, it seems to me that the proper result is that the application should be refused and I do so.
I will not make an order for costs. While it is true that the application has been unsuccessful, the rather special circumstances of this case to my mind warrant the result that Mr Knight should not have to bear the burden of the Attorney‑General's costs.
‑ ‑ ‑
---
0
0
0