Knight v Corrections Victoria - [2009] VSC 607

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] VSC 607
Decision Date: 18 DECEMBER 2009

CaseChat Overview and Summary

Knight, a prisoner, applied to the Supreme Court for leave to commence proceedings against Corrections Victoria for a review of decisions made under the Freedom of Information Act 1982. Corrections Victoria argued that Knight was a vexatious litigant and that the application should be refused. The court had to decide whether Knight's application should be granted and, if so, whether the leave granted should be subject to conditions. The court also had to determine whether Knight's subsequent application to amend his Statement of Claim to allege a new cause of action should be granted, given that the legislation had been amended since the original leave was granted.

The court held that Knight's application should be granted, subject to conditions. The court found that Knight was not a vexatious litigant, and that the conditions imposed on the grant of leave were appropriate. The court also held that the amendments to the legislation since the original leave was granted meant that the proceeding was now rendered doomed to fail. The court found that the new cause of action alleged by Knight was not within the scope of the original leave granted, and that the amendments had retrospective effect. Therefore, the court refused Knight's second application to amend his Statement of Claim.

The court's reasoning was based on the principle that leave to commence proceedings should be granted only in cases where there is a real prospect of success. The court found that Knight's application met this criterion, but that the conditions imposed on the grant of leave were necessary to prevent an abuse of process. The court also held that the retrospective effect of the amendments to the legislation meant that the proceeding was now bound to fail, and that Knight's second application to amend his Statement of Claim should be refused.

The court granted Knight leave to commence proceedings, subject to conditions, and refused his second application to amend his Statement of Claim. The court also ordered that Knight pay Corrections Victoria's costs of the proceedings.

Orders