Knight v Corrections Victoria
[2009] VSC 607
•18 DECEMBER 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No 9420 of 2003
| JULIAN KNIGHT | Plaintiff |
| v | |
| CORRECTIONS VICTORIA | Defendant |
No 9363 of 2006
| JULIAN KNIGHT | Plaintiff |
| V | |
| KELVIN JOHN ANDERSON | Defendant |
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JUDGE: | VICKERY J | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 4 AND 16 DECEMBER 2009 | |
DATE OF JUDGMENT: | 18 DECEMBER 2009 | |
CASE MAY BE CITED AS: | KNIGHT v CORRECTIONS VICTORIA | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 607 | |
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PRACTICE AND PROCEDURE – Vexatious litigant – Prisoner - Application to commence proceedings – Section 21(3) Supreme Court Act 1986 – Application for leave to commence proceedings in the Victorian Civil and Administrative Tribunal for a review of decision made under the Freedom of Information Act 1982 – Application granted – Second application to amend Statement of Claim to allege a new cause of action in existing proceedings in respect of which leave was previously granted to commence proceedings, such leave being granted subject to conditions – Amendments to s.47D and 47DA Corrections Act 1986 since grant of original leave – Retrospective operation of amending legislation - Proceeding now rendered doomed to fail – Second application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Julian Knight in person | |
| For the Defendants | Ms C Harris | Ms N Sahinidis |
HIS HONOUR:
The Court has before it two originating motions both dated 19 November 2009. The first was issued in proceeding No.9420 of 2003 and is supported by an affidavit sworn by the applicant dated 19 November 2009. The second originating motion was issued in proceeding No.9363 of 2006 and is supported by an affidavit sworn by the applicant dated 24 November 2009. In the second matter the applicant also referred to and relied upon five other affidavits which he affirmed, filed and served between 10 October 2006 and 19 November 2006.
The applicant in both matters is Julian Knight, who appeared in person. At the hearing conducted on 4 December 2009 there was no appearance on behalf of either of the defendants in the proceedings before me, save that Ms Sahinidis, a legal manager within Corrections Victoria was present to assist the Court should that be required. Ms Sahinidis made no submissions on the applications. At a further short hearing conducted on 16 December 2009 the applicant appeared by a pre-arranged video link and Corrections Victoria was represented by Ms C Harris of counsel.
Julian Knight is a prisoner in Port Philip Prison at Laverton North in Victoria. In 1987, when aged 19, he murdered seven people and attempted to murder many others. Mr Knight pleaded guilty to committing those crimes. A Judge of this Court sentenced him to life imprisonment. In view of his youth and prospects of rehabilitation, the Judge set a minimum term - 27 years. Now aged 41, Mr Knight has served 22 years of his sentence. He will become eligible for parole on 8 May 2014 when he will be aged 46 years.
On 19 October 2004 Mr Knight was declared a vexatious litigant for a period of 10 years pursuant to s.21 Supreme Court Act 1986.[1] Consequently he requires leave pursuant to s.21(3) of the Act in order to commence proceedings. Section 21(4) provides that leave must not be given unless the Court is satisfied the proposed proceeding would not be an abuse of process.
[1] Attorney General for Victoria v Knight [2004] VSC 407.
The operation of s.21(4) was considered by the Court of Appeal in Phillip Morris Ltd v Attorney-General for the State of Victoria.[2] It was decided that s.21(4) operated to confer a discretion to grant leave which is enlivened after the Court becomes satisfied the proceeding would not be an abuse of process.[3] The onus is on the applicant to so satisfy the Court. 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.[4]
[2][2006] VSCA 21; (2006) 14 VR 538.
[3] Supra per Maxwell J at 561.
[4]See: Bell J in Knight v Anderson [2007] VSC 278 at [7].
At the outset of the application I made an order, pursuant to s.18(1)(c) of the Supreme Court Act 1986, that until further order, the publication by print, radio, television, electronic or any other means whatever, of the name of the victim [here deleted], of the offences of Julian Knight committed in August 1987 and referred to in the originating motion dated 19 November 2009 in this proceeding, and in the affidavit of Julian Knight dated 24 November 2009, or of information that could identify that victim, be prohibited.
The First Proceeding
In the first proceeding Mr Knight seeks the production of newspaper clippings which he says are retained on his prison files. He says that these clippings are currently contained in Section 4 of his Individual Management Plan File maintained by the respondent to the originating motion, Corrections Victoria.
Mr Knight says that he submitted a request on 9 June 2009 for various documents with the respondent Corrections Victoria pursuant to the Freedom of Information Act 1982 (Vic) (“the FOI Act”). His request was for full access to the following Corrections files and records relating to his personal affairs:
1.The “Sentence Management Panel Annual Review” report prepared by Kareen Walka, S/AOO Clinician, Moreland Hall, on 16 October 2008;
2.All newspaper clippings contained in Section 4 of his IMP File (File No. 2 of 2); and
3. His PIMS-R-200 Prisoner Indent Report.
He further says that on 14 September 2009 his request was decided by Department of Justice FOI Officer Joanna Richardson. In relation to the document listed as item 2 in his request, the newspaper clippings contained in section 4 of his IMP File (File No. 2 of 2), Ms Richardson denied access in full to 75 relevant pages on the grounds that the documents were exempt pursuant to ss.31(1)(a), 33(1) and 38 of the FOI Act.
On 16 September 2009 Mr Knight requested that the Secretary to the Department of Justice conduct an Internal Review of Ms Richardson’s decision in relation to the newspaper clippings. He requested a review on the grounds that:
(a)The documents in question contained, in the main, reproductions of media articles that have appeared and still appear in the public domain. They come within the ambit of the FOI Act as a result of being edited from a larger publication, notated and filed in my IMP File;
(b)The advice from Ms Richardson that she was “advised by clinical services staff from Corrections Victoria that the disclosure of the newspaper clippings could undermine the effectiveness of your rehabilitation and be detrimental to the formulation of treatment pathways for your rehabilitation, and therefore prejudice the administration of the Corrections Act 1986”, is without foundation as there is no basis for this advice. The fact that previous requests of a similar nature over the past 22 years have been granted should also be noted;
(c)The assertion by Ms Richardson that the “release of information relating to the personal affairs of a number of individuals would be unreasonable” is clearly untenable given that the documents in question contain reproductions of articles that have appeared, or still appear (through the Internet and the newspapers section of the State Library), in the public domain;
(d)The likelihood that I have already seen the original articles, given that prisoners at PPP are provided with daily access to The Age and the Herald Sun and are able to purchase their newspapers;
(e)Given that the clippings are from public documents already in the public domain, the various factors taken into account by Ms Richardson are irrelevant considerations;
(f)That the nature of some of the information in question “is about the ongoing impact of crimes against various individuals” favours the granting of release, as it is a vital component of my rehabilitation that I be made aware of the impact my actions have had on my victims;
(g)It is important that in my dealings with Corrections Victoria I be aware of what information they are relying on in making decisions about my management and my preparation for release. In addition, Ms Richardson fails to detail how these documents are used “as part of the process of managing [me] as a prisoner”;
(h)Given my unrestricted daily access to newspapers and other media, and the previous granting of similar requests by Corrections Victoria, there is no “likelihood that disclosure would cause stress, anxiety or embarrassment”;
(i)Given that the clippings are from public documents already in the public domain, the provisions of s.38 of the FOI Act and s.30(2) of the Corrections Act, do not apply.
On 20 October 2009 the Internal Review requested by Mr Knight was conducted by Louise Tijs, Legal Counsel, Contract Administration, Corrections Victoria. The decision of Ms Tijs was to affirm in full the decision of Ms Richardson.
Mr Knight said that during the 22 years he has been in lawful custody all previous FOI requests made by him for access to newspaper clippings held on his prison files have been granted.
My task is not to decide the issue which Mr Knight seeks to have heard and determined by the Victorian Civil and Administrative Tribunal (“VCAT”). My only function is one which arises from s.21 of the Supreme Court Act 1986, to determine whether leave should be granted to Mr Knight, who has been declared a vexatious litigant, to commence his proposed proceeding before VCAT.
In my opinion, Mr Knight is entitled to have the officers’ assessment examined afresh by VCAT. The Tribunal is an independent body empowered to conduct a review of the decision which Mr Knight seeks to challenge. The question for the Tribunal will be whether or not the documents comprising the newspaper clippings retained in Mr Knight’s files have been appropriately categorised as being exempt pursuant to ss.31(1)(a), 33(1) and 38 of the FOI Act.
The decision as to whether documents fall within the exemptions referred to in ss.31(1)(a), 33(1) and 38 of the FOI Act are in large part value judgments founded upon the character and content of the documents in question assessed against the statutory criteria provided for and the case law which has developed on the criteria. I do not characterise Mr Knight’s proposed proceeding in VCAT as having no prospects of success or that it is foredoomed to failure. Accordingly, I will grant Mr Knight’s application.
I will order that Mr Knight be given leave, pursuant to s.21 of the Supreme Court Act 1986, to apply, pursuant to s.50 of the Freedom of Information Act1982, to the Victorian Civil and Administrative Tribunal for a review of the decisions of Joanna Richardson and Louise Tijs, refusing to grant access to a documents in accordance with Mr Knight's request. I make no orders as to the costs of the application.
The Second Proceeding
The second proceeding before me was commenced by the applicant by originating motion against Kelvin John Anderson, who was the Commissioner for Corrections.
As Bell J found in Knight v Anderson,[5] in 2005 while at Barwon Prison, Mr Knight arranged for a letter to be sent to one of his victims. The letter was in handwritten form and consisted of four pages. It was dated 2 August 2005. He said he did so after much thought and reflection and that it was a letter of apology and explanation. The 2 August letter was not sent directly through the authorised prison channels for correspondence. Mr Knight enclosed the letter in another letter to a member of an organisation known as Prison Fellowship, Mr Kevin Maddock. This was a one page typewritten letter dated 3 August 2005. The second letter requested the recipient to determine whether the victim wished to receive Mr Knight’s letter and if so, to deliver it to him. The second letter also requested the member of Prison Fellowship to read the letter intended for the victim before delivering the letter and invited the member to express his views upon it. Both letters were intercepted by the prison authorities. They were opened and not sent to the member of the Prison Fellowship or the victim. They remain in the custody of Corrections Victoria.
[5][2007] VSC 278.
In Knight v Anderson Bell J considered an application by Mr Knight, who was then a vexatious litigant, to commence proceedings pursuant to s.21(3) of the Act in relation to the seized letter. Bell J described the essence of the proceeding proposed to be commenced by Mr Knight in the following terms:[6]
He also seeks orders that would prevent the authorities from stopping letters he wants to send to victims of his crimes. They have seized one such letter which he contends is one of apology and explanation.
[6]Ibid at [3].
The latest formulation of Mr Knight’s proposed application in the proceeding before Bell J contained in the applicant’s statement of claim dated 26 July 2007. By ground 6 he sought orders by way of judicial review preventing the prison authorities from stopping letters being sent by him to his victims, including the seized letter.
Bell J summarised Mr Knight’s application and his conclusion upon it in the following terms:[7]
[7]Ibid at [20 – 31].
Ground 6 of Mr Knight’s proposed application seeks a mandatory injunction requiring the Commissioner to release the letter to the member of the Prison Fellowship and the victim and to allow Mr Knight to send the letters to their intended recipients. The ground is not well formulated but it could easily be refashioned into a more appropriate form. The question raised by the ground is whether the power in the Corrections Act to prevent a prisoner from sending a letter extends to the letter to the victim.
Expressing ideas in spoken or written words is a liberty we all possess, subject to law. Prisoners stand in no different category in this regard, but the Corrections Act understandably gives the Governor of a prison special powers to inspect, stop and censor letters from prisoners. The censorship powers are not at issue in this case.
This is s.47D(1) and (2) of the Corrections Act:
(1)This section applies if the Governor reasonably believes that any letter to be sent by a prisoner to, or sent to a prisoner by, any person ...-
(a) is a threat to prison security; or
(b) may be of a threatening or harassing nature; or
(c) may be being used to further an unlawful activity or purpose; or
(d)contains indecent, abusive, threatening or offensive written or pictorial matter, or an indecent, obscene or offensive article or substance; or
(e) contravenes or would contravene s.47H.
(2) The Governor may –
(a)if the belief concerns the whole letter, stop the letter from being sent or received by the prisoner; or
(b)if the belief concerns only part of a letter, cause the relevant part of the letter to be censored.
You can see the power to stop a prisoner’s letter depends on the Governor having a reasonable belief that it comes within one or more of the categories specified in s.47D(1)(a)–(e). Otherwise the Governor has no power to stop a letter from being sent.
Mr Knight contends the letter to the victim was not a threat to security, threatening, harassing, offensive or anything of that kind but one of apology and explanation. Therefore the prison authorities had no power to stop it. The Commissioner contends the letter was plainly one which the prison authorities could reasonably believe came within one or more on the categories in s.47D(1)(a)–(e). Therefore Mr Knight’s application on this ground is foredoomed to fail.
I have read the letter to the victim, which is a confidential exhibit in this case. In my view, Mr Knight’s contention that the prison authorities had no power to stop the letter under s.47D(1)(a)–(e) is not foredoomed to fail. Whether it can properly be characterised as a letter of apology and explanation, whether is contains material that goes beyond those subjects and the precise legal implications of the entire contents of the letter are all matters for consideration at the substantive hearing of the proceeding. The proposed proceedings would not, on the basis that it is foredoomed to fail or on any other basis, be an abuse of process.
There are no discretionary reasons sufficient to justify refusing Mr Knight leave to commence the proceeding on ground 6. Communication between prisoners and victims is a matter of extreme sensitivity. This can be considered at the substantive hearing, which will involve that and other important issues. The fact that the substantive hearing may attract publicity, which some of Mr Knight’s victims may see, is not a reason to refuse leave.
I will therefore grant leave to Mr Knight to commence the application for judicial review in relation to the stopping of the letter to the victim, subject to these conditions:
•ground 6 should be refashioned in terms of a declaration and/or a negative injunction
•the application should be brought against the appropriate defendant, who would appear to be the Governor of the relevant prison
•Mr Knight should be legally represented from now on
Mr Knight, by his second originating motion, now seeks the leave of the Court to amend the original ground 6 in his proposed statement of claim and to substitute the following:
The Plaintiff, having being granted limited conditional leave by His Honour Bell J on 1 August 2007 (Knight v Anderson [2007] VSC 278 at 40), seeks leave from the Court to substitute the original ground 6 in his statement of claim for the following:
(6)The Plaintiff seeks from the Court an order in the nature of a prohibitory injunction restraining the defendant from preventing the Plaintiff from sending letters written by the Plaintiff to Mr Kevin Maddock of Prison Fellowship on 3 August 2005, and to Mr [X (a victim of the applicant’s crimes)] on 2 August 2005, and subsequently stopped and seized by the Defendant’s delegates on 4 August 2005, on the grounds that:
The Plaintiff has a right to send letters uncensored by prison staff pursuant to section 47(1)(n) of the Corrections Act1986 (Vic),
The Plaintiff’s letters do not fall within the provisions of sections 47D(1) or 47DA of the Act, as they are not a threat to prison security, that (sic) are not of a threatening or harassing nature, they are not being used to further an unlawful activity or purpose, and they do not contain indecent, abusive, threatening or offensive written or pictorial matter, or an indecent, obscene or offensive article or substance, or would be regarded as distressing or traumatic by the second named intended recipient,
The Plaintiffs letters do not breach regulation 50(1)(k) of the Corrections Regulations2009 (Vic),
The Plaintiff’s letters are not liable to be censored pursuant to Part 1.2 of the Director’s Instructions No. 4.7 as there is no evidence that they contain plans for criminal activity, instructions for manufacture of weapons, drugs, or drug paraphernalia, or alcohol, threatened blackmail or extortion, plans for escape or unauthorised entry, information which, if communicated, would create a serious danger of violence and physical harm to any person, or coded content or language not understood by the reader and suspected of containing any of the above,
Neither of the intended recipients of the Plaintiff’s letters have indicated that they do not wish to receive mail from the Plaintiff,
The second named intended recipient has not advised the General Manager of Barwon Prison that he requests that no further mail be forwarded to him, so the provisions of Part 1.3 of the Director’s Instruction No. 4.7 do not apply, and
The second named intended recipient has publicly stated that he seeks an explanation from the Plaintiff as to the Plaintiffs’ actions.
The Plaintiff seeks leave from the Court to bring the application against the Commissioner of Corrections Victoria, on the grounds that:
The cause of action arose when the Plaintiff was a prisoner at Her Majesty’s Prison Barwon,
The Plaintiff was transferred from Her Majesty’s Prison Barwon to the privately owned Port Phillip Prison on 19 June 2007, and
It would be unjust to transfer the costs of defending the application from the State Government to a private company unconnected (sic) with the cause of the action.
The Plaintiff seeks leave from the Court to proceed unrepresented, on the grounds that:
He cannot afford to hire representation, and
He has been unable to obtain pro bono representation.
Prior to commencing this application by his originating motion dated 19 November 2009, Mr Knight has taken no other step in the proceeding since he was granted the conditional leave by Bell J on 1 August 2007 in Knight v Anderson.[8] However, in a letter written to Mr Rod Wise, Deputy Commissioner Prisons and Transitional Services, dated 17 June 2009 exhibited to Mr Knight’s affidavit dated 24 November 2009, he said that:
I have instructed my legal representatives at Darebin Community Legal centre that I wish to re-activate the proceeding I was granted leave to pursue in 2007, namely Knight v Anderson.
Mr Knight’s explanation for his apparent inactivity is stated by him in his affidavit as follows:
I have hoped that Corrections Victoria would institute some form of restorative justice or similar program whereby I would be given the opportunity of offering an apology to those of my victims who would wish to receive it. No such program has been instituted. I also believe that the current age (68) of the victim in question is a relevant matter in deciding to re-activate this matter.
[8][2007] VSC 278.
Pursuant to s.21(5) of the Supreme Court Act1986 the Court may at any time vary, set aside or revoke an order made under subsection (2) if it considers it proper to do so. In this case the order made by Bell J was not made under subsection (2), but was made under subsection (4). Nevertheless, in the exercise of its inherent jurisdiction, in the proper case, in my opinion it is open to the Court to vary the conditions of an order made pursuant to s.21(4).
At the time of delivery of his judgment in Knight v Anderson[9] his Honour was compelled to consider s.47 and 47D of the Corrections Act 1986 in its unamended form. Following delivery of the judgment, the Legislature amended the Corrections Act by passing the Justice Legislation Amendment Bill 2007 into law.[10]
[9][2007] VSC 278.
[10]The Justice Legislation Amendment Act 2007, Act No. 53 of 2007.
The amendments created a new Division 4A concerning letters to and from prisoners and inserted new section 47AA which provides for definitions of “family member” and “victim” for the purposes of the new Division. Section 47AA defines a “victim” for the purposes of Division 4A as follows:
victim means-
(a)a natural person who has suffered injury, loss or damage (including grief, distress, trauma or other significant adverse effect) as a direct result of an offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender; or
(b) a family member of a person to whom paragraph (a) applies.
Section 47D(1)(d) of the Corrections Act was also amended purportedly to enable a Governor to intercept or censor any letter to be sent by a prisoner, or sent to a prisoner by any person (other than prescribed persons) that contains written or pictorial matter that may be regarded by a victim as distressing or traumatic. Section 47D now relevantly provides (with amendments shown underlined):
47D When letters may be stopped and censored
(1)This section applies if the Governor reasonably believes that any letter to be sent by a prisoner to, or sent to a prisoner by, any person who is not listed in section 47(1)(m) —
(a) is a threat to prison security; or
(b) may be of a threatening or harassing nature; or
(c) may be being used to further an unlawful activity or purpose; or
(d)contains indecent, abusive, threatening or offensive written or pictorial matter, or written or pictorial matter that may be regarded by a victim as distressing or traumatic, or an indecent, obscene or offensive article or substance; or …
(2) The Governor may-
(a)if the belief concerns the whole letter, stop the letter from being sent or received by the prisoner; or
(b)if the belief concerns only part of a letter, cause the relevant part of the letter to be censored.
A new section s.47DA was also inserted into the Act. The new section makes it an offence for a prisoner to send or cause to be sent or attempt to send or cause to be sent a letter to a victim if the prisoner knows or ought reasonably to know that the letter contains matter that may be distressing or traumatic to the victim or any other victim who might reasonably receive it. The maximum penalty provided for this offence is 6 months’ imprisonment.
In accordance with s.28 of the Charter of Human Rights and Responsibilities,[11] the Minister for Police and Emergency Services tabled in Parliament a statement of compatibility on 22 August 2007.[12] Following a detailed analysis of the relevant competing rights and responsibilities, the statement concluded:
… the power of prison governors to intercept or censor distressing or traumatic correspondence; and the related offence of sending, attempting to send or causing to be sent such correspondence accords with the philosophy underpinning human rights, that is, protecting the community from harm. As such, these aspects of the bill do not limit the charter rights of privacy and freedom of expression. I therefore consider the bill is compatible with the Charter of Human Rights and Responsibilities.
[11]The Charter of Human Rights and Responsibilities Act 2006.
[12]See: Vic Hansard, 22 August 2007, Assembly at pp. 2909 – 2916.
In introducing the Justice Legislation Amendment Bill 2007 in the second reading speech, the Minister said:
This bill amends the Corrections Act 1986 in two ways with intention to further strengthen the recognition that this government has given to the needs of, and harmful effects of crime on, victims as follows.
Extension of governors' powers to intercept or censor letters
The emotions of victims and the general community are still raw 20 years on from the tragic Hoddle Street massacre in which Julian Knight's rampage left 7 people dead and 19 people injured. The trauma continues to haunt Julian Knight's victims, and indeed the community.
The recent judgement of the Supreme Court case of Knight v Anderson (2007) VSC 278 which granted Julian Knight leave to commence an application for judicial review in relation to the stopping of the letter to one of his victims has caused community outrage.
The government recognises that crime affects each person differently, often leaving its victims devastated and violated, and that such effects can be severe and long lasting. There can also be an enormous toll on the families and friends of victims, as well as on their communities and on society at large.
In response, the government gave a commitment to further protect victims' rights by giving correctional officials the power to stop offenders, such as Julian Knight, from contacting their victims.
The government has acted swiftly to fulfil this commitment.
This bill will amend the Corrections Act 1986 to enable prison governors to intercept or censor letters sent by prisoners to any person if they reasonably believe that the letter contains material that may be distressing or traumatic.
This amendment will validate the prison governor's decision to stop the letter that Julian Knight wrote which was the subject of the decision of the Supreme Court in Knight v Anderson.
This bill will also make it an offence for a prisoner to send, cause to be sent, attempt to send or cause to be sent, a letter to a victim, or the family member of a victim, that contains such material and that the prisoner knows or ought reasonably to have known would be regarded in this way. The maximum penalty for this offence is six months imprisonment.
This new offence is intended to capture situations where a prisoner writes to their victims or their family members or where another prisoner writes to victims (other than victims of their own offences) or family members of these victims, and thereby causes distress and trauma.
The Victorian correctional system has had experience of situations in the past, where one prisoner uses another prisoner to cause distress to their victims and their families.
This amendment will protect victims and their families from such communications and thereby protect them from experiencing any further distress or trauma.
Sections 16 and 17 of the Justice Legislation Amendment Act 2007, which introduced the amendments to the Corrections Act to which I have referred, by the operation of s.2(2) of the amending Act, apply retrospectively from 1 July 2005. Section 2(2) of the Justice Legislation Amendment Act provides:
(2)Sections 16 and 17 are deemed to have come into operation on 1 July 2005.
It has been frequently declared that, in the absence of some clear statement to the contrary, an Act will be presumed not to have retrospective operation. In Maxwell v Murphy[13] Dixon CJ summarised the principle in the following terms:
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.
[13](1957) 96 CLR 261 at 267.
However, a parliament is not prevented from making laws which have retrospective operation. The position was clearly enunciated by Higgins J in R v Kidman[14] where his Honour observed:
The British Parliament, admittedly, has power to make its laws retroactive; and I know of no instance in which a Legislature created by the British Parliament has been held to have overstepped its powers by making legislation retroactive. There are plenty of passages that can be cited showing the inexpediency, and the injustice, in most cases, of legislating for the past, of interfering with vested rights, and of making acts unlawful which were lawful when done; but these passages do not raise any doubt as to the power of the Legislature to pass retroactive legislation, if it see fit. The maxim runs: Nova constitutio futuris formam imponere debet, non præteritis. The word used is "debet," not "potest." This is the British system, whether it be right or wrong. It is not the system of the French Code; for, even in civil matters, it is provided "la loi ne dispose que pour l'avenir; elle n'a point d'effet retroactif" (Code Civil, 2).
[14](1915) 20 CLR 425 at 451.
The retrospective operation of the amendments in the present case are beyond doubt. They were clearly intended to overcome the effect of the decision of this Court in of Knight v Anderson.[15] The retrospective operation of the amended sections of the Corrections Act was apparently considered necessary to protect victims and their families from possible distress or trauma that may be inflicted upon receipt of a letter from perpetrators of the crimes such as the perpetrator in this case.
[15] (2007) VSC 278.
In my view, there are compelling reasons to justify refusing Mr Knight leave to amend his proceeding by the substitution of ground 6 in the manner proposed by him.
Since the granting of the order made by Bell J in Knight v Anderson[16] the amendments to the Corrections Act to which I have referred have passed into law. Prior to the amendments to s.47(1)(d) of the Act coming into operation, the decision of the Governor to seize the letter proposed to be sent by the applicant to one of his victims may well have been regarded as open to judicial review or the grant of an injunction, as found by Bell J.
[16](2007) VSC 278.
However, the present application of Mr Knight calls to be considered in a new legislative context.
If the application made by Mr Knight can properly be characterised as an application for judicial review by way of certiorari or prohibition, the question as to whether the decision of the Governor ought to be quashed and set aside is a matter to be determined in the light of the law and facts as they were at the time when the original decision maker made his of her determination. Given the retrospective operation of the 2007 amendments to the Corrections Act to which I have referred, on judicial review the Court would be obliged to consider the decision of the prison Governor as if the amendments were in place at the time of the making of the original decision.
Further, the grant of relief by way of certiorari or prohibition is discretionary, even though the grounds have been established. They are not remedies which are granted as of right. One of the factors to be considered in refusing such relief is that the grant is futile. The Court can refuse certiorari or prohibition because it would be useless. Delay is also a relevant criterion for discretionary refusal of certiorari or prohibition. In Victoria, rule 56.02 of the Supreme Court (General Civil Procedure) Rules 2005 provides that a proceeding for judicial review must be commenced within 60 days after the date when grounds for the grant of the relief or remedy first arose. Although no question can now be raised that the original proceeding in respect of which Bell J gave his Order on 1 August 2007 in Knight v. Anderson[17] was not commenced within time, the strict time limit provided for in the Rules provides a measure of guidance as to the importance of prosecuting proceedings by way of judicial review with expedition.
[17](2007) VSC 278.
However, on its face of his application in its proposed amended form, Mr Knight does not seek relief in the nature of certiorari or prohibition. What he appears to seek is an injunction restraining the named defendant from “preventing the plaintiff from sending” the specified letters. In other words, no doubt in an attempt to comply with the condition for leave granted by the Orders of Bell J made 1 August 2007, that “ground 6 should be refashioned in terms of a declaration and/or a negative injunction”, what the applicant now seeks is a negative injunction. The central legal basis for the claimed injunction is that the applicant’s proposed letters to his victim, as he claims in his proposed amended ground 6, “do not fall within sections 47D(1) or 47DA of the Act”. In other words, the conduct of the respondent, in taking steps to prevent him from sending the letter to the victim, and using Mr Maddock as an agent to achieve that end, is ultra vires or beyond the power conferred by the Act. A claim for an injunction is also a claim for discretionary relief.
In approaching the question of the relief claimed, namely the grant of an injunction founded upon a finding of ultra vires as I have described it, the Court would be obliged to consider the position as it is at the time of the determination of the application, including the amendments to the Corrections Act to which I have referred which have now passed into law.
Mr Knight submitted that the letters he proposes to send to Mr Maddock and to his victim could not cause stress or trauma to the victim. I do not accept this submission.
I have read both the letter intended to send to Mr Maddock of Prison Fellowship dated 3 August 2005 and the letter intended to be sent to the victim dated 2 August 2005.
The letter written to Mr Maddock of Prison Fellowship is a letter “to be sent by a prisoner” within the meaning of s.47D(1) Corrections Act (as amended), Mr Maddock not falling within the class of persons listed in s.47(1)(m). Through this letter Mr Knight was attempting to engage Mr Maddock as his agent to send the letter to his victim and to communicate with the victim to ascertain the victim’s attitude to the receipt of the letter to be sent to him. In communicating with the victim, it was intended that Mr Maddock would relay to the victim the fact that Mr Knight had written a letter him, although the details of the letter would not, at that point at least, be expected to be communicated to the victim. The victim would then know that Mr Knight was proposing to send a letter to him, with the precise contents of the letter not being disclosed. The relevant contents of the letter written to Mr Maddock by Mr Knight would also more than likely come to the attention of the victim through the proposed communication by Mr Maddock to the victim. The letter written to Mr Maddock, upon its existence being disclosed to the victim as intended, and upon the inquiry being made of the victim as to whether he wished to receive the principal letter, would give rise to a situation in which the victim is placed in the position of having to decide whether or not to receive the letter from his former assailant, when the precise contents of that letter would remain unknown to him.
To the extent that the letter to Mr Maddock also refers to some other matters, such as a recent VCAT decision, Mr Knight’s complaint as to the lack of access to newspapers and a matter of an administrative nature concerning some items of Mr Knight’s property, these matters would not, on their face fall within s.47D(1)(a)-(d) Corrections Act (as amended). If this is the case, there would be nothing to prevent Mr Knight from sending a further letter addressed to Mr Maddock, or any other person in his position, confined to these other matters, without the necessity for the Governor’s powers under s.47D(2) being exercised.
The letter written to the victim was also a letter “to be sent by a prisoner” within the meaning of s.47D (1) Corrections Act (as amended), the victim not falling within the class of persons listed in s.47(1)(m).
As Bell J said in Knight v Anderson,[18] whether the letter addressed to the victim “can properly be characterised as a letter of apology and explanation, [or] whether it contains material that goes beyond those subjects”, in my opinion a person in the position of the Governor, acting reasonably, could not avoid the conclusion that the letter proposed to be sent by Mr Knight to his victim contains written matter that may be regarded by the victim as distressing. The letter written to Mr Maddock is in a similar position. The Governor would therefore be empowered to act under s.47D(2) to stop the letters from being sent.
[18](2007) VSC 278.
The threshold for the level of satisfaction on the part of the Governor provided for in s.47D Corrections Act is set at a deliberately low level in order to give effect to the purposes of the legislative provision as reflected in the second reading speech and the Charter of Human Rights statement of compatibility at the time of its introduction.[19] A construction which promotes the purpose or object underlying the legislation is to be preferred to a construction which does not.[20]
[19]These materials may be considered pursuant to s. 35 (2) Interpretation of Legislation Act 1984.
[20]Section 35(1) Interpretation of Legislation Act 1984.
The very fact that the communications in question are letters signed by the perpetrator of these grave crimes, which caused such a degree of trauma to surviving victims, and that this fact would be brought to the attention of the victim, may have the effect of distressing the victim, regardless of the contents of the balance of the letters, their tone or subject matter. The risk of such harm is the very risk which the legislation is designed to avoid.
I accept the submissions of Mr Knight that the intended recipient, who is the victim, has no expressed opposition to receipt of the letter and that it was intended that Mr Maddock would act as a “sounding board” prior to the letter being sent to the victim. However, this does not detract from the obligation of the Governor to consider the potential impact of the receipt of such letters on the victim, whether the receipt of the letter proposed to be sent to the victim was consented to or not.
Accordingly, in my view, Mr Knight’s contention that the powers conferred on the prison Governor under the Corrections Act do not permit him to stop the letters being sent to the applicant’s proposed agent and his victim, is foredoomed to fail in the light of the changes to s.47(1)(d) of the Act which have been introduced since the decision in Knight v Anderson.[21]
[21](2007) VSC 278.
I am satisfied in this case that the grounds for judicial review could not be made out and would fail.
Further, even if any of the grounds could be made out, and relief by way of certiorari or prohibition was granted, and the matter was remitted back to the prison Governor to make a fresh decision, the fresh decision made in the light of the amended legislation would more than likely be against permitting the letter to the victim to be sent. In these circumstances the grant of relief would be a futile exercise. Accordingly, if the present matter was to proceed to a judicial review, it would be likely to be foredoomed to failure on the further ground that, in the exercise of the Court’s discretion, relief would more than likely be refused.
Furthermore, the delay in re-activating the proceeding, after leaving the action dormant for some two years would be a further highly relevant consideration in the exercise of the Court’s discretion to grant relief, whether by way of certiorari or prohibition, or injunction. This is particularly so in a case such as the present where the rights and wellbeing of the applicant’s victim may be affected. I do not accept the applicant’s explanation as a reasonable excuse for permitting his proceeding to become inactive for such a long period. This too leads me to conclude that in all likelihood the applicant’s proceeding, if it was now to be amended, would be foredoomed to fail because the further discretionary ground for refusal of relief founded on delay is clearly established.
Accordingly, I decline to make the orders to amend ground 6 as sought in Mr Knight’s second originating motion dated 19 November 2009 on the ground that it would serve no useful purpose. For the same reasons, I also refuse to grant the application to amend the proceeding to bring it against Corrections Victoria and for leave to proceed unrepresented.
I dismiss the second originating motion of the applicant dated 19 November 2009 and make no orders as to costs upon it.
I make no other order as to the further conduct of the proceeding in the absence of any application pursuant to Order 23 Supreme Court (General Civil Procedure) Rules 1985 being before the Court and there being any other application before the Court.
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