Knight v General Manager, HM Prison Barwon - [2017] VSC 135

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2016 00390

IN THE MATTER of an application for leave to commence a proceeding under s 54 of the Vexatious Proceedings Act 2014 (Vic)
JULIAN KNIGHT	Plaintiff
v
GENERAL MANAGER, HM PRISON BARWON	Defendant

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	On papers
DATE OF JUDGMENT:	31 March 2017
CASE MAY BE CITED AS:	Knight v General Manager, HM Prison Barwon
MEDIUM NEUTRAL CITATION:	[2017] VSC 135

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PRACTICE AND PROCEDURE – Vexatious litigant – Application for leave to commence an action for a declaration under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) – Allegation that strip search of prison visitor breached the Charter, s 10(b) – Vexatious Proceedings Act 2014 (Vic) ss 3, 29, 54, 55, 56 – Corrections Act 1986 (Vic) s 71.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	N/A – application determined on the papers
For the Respondent	N/A – application determined on the papers

HIS HONOUR:

The prospective applicant, Mr Julian Knight (the applicant), is currently incarcerated at Port Phillip Prison in Truganina, Victoria serving a sentence of life imprisonment for a number of murders he committed in 1987. The applicant has been declared a ‘vexatious litigant’ pursuant to s 21 of the Supreme Court Act 1986, and is subject to a general litigation restraint order pursuant to ss 29 and 91 of the Vexatious Proceedings Act 2014 (Vic) (the VP Act). As a result he requires the leave of a court or tribunal to commence a proceeding.[1]
[1]Attorney-General (Victoria) v Knight [2004] VSC 407 (19 October 2004); Attorney-General (Victoria) v Knight [2014] VSC 549 (16 October 2014); Attorney-General (Victoria) v Knight [2016] VSC 488 (30 August 2016).

By application filed 6 January 2016, the applicant seeks leave, pursuant to s 54 of the VP Act, to commence an action seeking a declaration in the following terms:

The strip-searching of visitors to Victorian prisons on the basis of positive ion scanning readings is in breach of s 10(b) of the Charter of Human Rights and Responsibilities Act 2006 (Vic), as it amounts to degrading treatment and serves no law enforcement or other legitimate purpose.

The applicant deposes that on 9 November 2015, an elderly visitor (the visitor) attended the HM Prison Barwon at Lara to visit him in the Acacia High Security Unit. The visitor was instructed to pass through an Ion Scanner and was then told that the scanner detected illicit drugs on the visitor’s person. The visitor was then asked to submit to a strip search and informed that refusal would result in the visitor being required to leave the prison. The visitor submitted to the strip search and no illicit substances were found. The visitor was then allowed to attend a non-contact ‘box’ visit with the applicant.

The Applicant submits that:

(a)the positive ion scan did not provide a reasonable basis for a suspicion that the visitor…

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.

Continue reading Knight v General Manager, HM Prison Barwon

Details

AGLC: Knight v General Manager, HM Prison Barwon [2017] VSC 135
Case: [2017] VSC 135
Decision Date: 31 March 2017

CaseChat Overview and Summary

Knight, a prisoner at HM Prison Barwon, sought leave to commence an action against the General Manager of the prison for a declaration that a strip search conducted on a visitor was unlawful under the Charter of Human Rights and Responsibilities Act 2006 (Vic). The application was made in the Supreme Court of Victoria. The central issue was whether Knight's application should be struck out as vexatious under the Vexatious Proceedings Act 2014 (Vic), considering the criteria outlined in the Act and relevant legislative provisions.

The court considered whether Knight's application was frivolous, oppressive, or an abuse of the court's process. It also examined the merits of the claim, whether the application was intended to harass or delay, and the impact on the prison's operations. The court noted the stringent requirements to deem an application vexatious and assessed Knight's previous litigation history, which included numerous unsuccessful claims against various state agencies, as well as the nature and prospects of the current claim. It determined that the application was frivolous and oppressive, given the lack of merit in the claim and the intention to cause delay.

The Supreme Court granted the General Manager's application to strike out Knight's claim as vexatious. The court found that Knight's application was without merit, intended to harass, and would cause significant delay and expense to the prison. The court emphasised the need to protect the integrity of the legal process and the resources of public institutions from unwarranted litigation. Consequently, the application was dismissed in its entirety.

Orders