Knight v Hastings
[2012] VSCA 315
•18 December 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2012 0192
| JULIAN KNIGHT | Applicant |
| v | |
| ROBERT HASTINGS, COMMISSIONER CORRECTIONS VICTORIA | Respondent |
S APCI 2012 0217
| JULIAN KNIGHT | Applicant |
| v | |
| RODERICK WISE, DEPUTY COMMISSIONER, CORRECTIONS VICTORIA | Respondent |
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| JUDGES | NEAVE JA and HARGRAVE AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 10 December 2012 |
| DATE OF JUDGMENT | 18 December 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 315 |
| JUDGMENT APPEALED FROM | Knight v Hastings (Re Costs) [2012] VSC 423 (Williams J); Knight v Deputy Commissioner, Corrections Victoria [2012] VSC 506 (Kyrou J) |
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PRACTICE AND PROCEDURE − Vexatious litigant − Prisoner − Application for leave to appeal against refusal of leave to commence proceeding under s 21(4) of the Supreme Court Act 1986 − Refusal of permission to have in-cell personal computer − Application for leave to appeal refused.
PRACTICE AND PROCEDURE − Vexatious litigant − Prisoner − Leave to commence proceeding below granted − Applicant unsuccessful in substantive proceeding − Application for leave to appeal against costs orders − Application for leave to appeal refused.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | In person | |
| For Robert Hastings, Commissioner, Corrections Victoria | Ms C M Harris | Legal Services, Corrections Victoria |
| For Roderick Wise, Deputy Commissioner, Corrections Victoria | Ms C M Harris | Legal Services, Corrections Victoria |
NEAVE JA:
HARGRAVE AJA:
The applicant, Julian Knight (‘Knight’), is a prisoner at Port Phillip Prison. On 19 October 2004, he was declared to be a vexatious litigant under s 21 of the Supreme Court Act 1986 (‘the Act’) and prohibited from commencing any legal proceeding without the leave of the Court for 10 years from that date.[1] He now seeks leave to appeal in two unrelated matters.
[1]Attorney-General (Vic) v Knight [2004] VSC 407.
In the first application,[2] Knight seeks leave to appeal against costs orders made by Williams J on 20 September 2012 (‘Hastings application’).[3] Those orders were made in a proceeding which Knight was granted leave to commence under s 21(4) of the Act. In the substantive proceeding,[4] Knight failed to obtain an order in the nature of mandamus, to require the Commissioner of Corrections Victoria to review his security classification and placement, and to formulate a new sentencing plan (‘substantive Hastings proceeding’).
[2]Made by summons dated 4 October 2012.
[3]Knight v Hastings(Re Costs) [2012] VSC 423.
[4]Knight v Robert Hastings, Commissioner, Corrections Victoria [2012] VSC 203.
In the second application,[5] Knight seeks leave to appeal against an order made by Kyrou J on 31 October 2012, refusing his application for leave made under s 21(4) of the Act (‘Wise application’).[6] The applicant sought that leave in order to commence proceedings for judicial review of a decision made by Corrections Victoria refusing him access to an in-cell computer.
[5]Made by summons dated 2 November 2012.
[6]Knight v Deputy Commissioner, Corrections Victoria [2012] VSC 506.
Hastings application
Following Knight’s unsuccessful application for an order in the nature of mandamus, the Commissioner of Corrections Victoria sought an order for costs against the applicant.
In opposing the costs application, Knight argued that the proceeding was ‘in the public interest’, was a ‘test case’, that it is not uncommon for the court to decline to make an order for costs in proceedings relating to applications made by prisoners, and that it would be futile to make an order for costs against him because of his impecuniosity. These matters were said to amount to ‘special circumstances’ which would justify a departure from the general rule that costs should be awarded in favour of the successful party.
Williams J held that the proceeding:
did not involve any meaningful testing of the requirements of the regulations. Further, even if the proceeding concerned the public interest, its major focus was on Mr Knight’s own particular situation.[7]
[7]Knight v Hastings (Re Costs) [2012] VSC 423 [12].
She did not consider that this amounted to special circumstances justifying a departure from the general rule as to costs.
Her Honour also held that neither Knight’s status as a prisoner nor his lack of assets or income necessarily justified an exercise of the Court’s discretion against awarding costs to the successful party.
Knight also argued that the Commissioner had an ‘ulterior purpose’ for seeking costs since, given Knight’s impecuniosity, he would not recover them. Williams J rejected this allegation, finding that it had no substance.[8]
[8]Ibid [19].
Proposed grounds of appeal
Knight seeks leave to appeal against Williams J’s judgment as to costs, relying on the following grounds of appeal:
1. That the Court below erred in all the circumstances in exercising its discretion to award costs in favour of the defendant (at [4]).[9]
2. That the Court below erred in finding that “special circumstances” must exist before a departure from the general rule as to costs will be warranted (at [5]).
3. That the Court below erred in finding that the plaintiff’s application was not a “test case” (at [8] and [12]).
4. That the Court below erred in finding that the plaintiff’s application was not “in the public interest” (at [9] and [12]).
5. That the Court below erred in finding that the defendant’s application for costs was not an abuse of process given the financial and personal circumstances of the plaintiff (at [16] to [19]).
[9]The paragraph numbers refer to her Honour’s reasons.
In support of ground 2, Knight submitted that the judge had misdirected herself by considering that the Court would only depart from the normal rule as to costs in special circumstances.
In granting limited leave to the applicant to commence the substantive Hastings proceeding,[10] Emerton J said that because new requirements were imposed in relation to sentence management plans by the Corrections Regulations 2009,[11] ‘what is required in respect of the content of a sentence management plan as a result of the new regulations remains to be authoritatively determined’.[12]
[10]Knight v Hastings [2011] VSC 332.
[11]Made under the Corrections Act 1986.
[12]Knight v Hastings [2011] VSC 332 [6].
Under cover of ground 3, Knight argued that Emerton J’s dictum supported his claim that Williams J had wrongly found that the substantive Hastings proceeding was not a test case. Under cover of ground 4, he submitted that the substantive proceeding before Williams J engaged the recognised public interest in the proper administration of prisons and the welfare of prisoners.
Finally, he argued that the Commissioner’s application for costs was futile and amounted to an abuse of process. Although a costs order could be made against a party with limited assets, even if there was little chance that the costs would be recovered, there was a distinction between little chance and no chance of recovery of costs. Since he had no assets or chance of acquiring assets, there was no possibility that any costs order would result in the recovery of costs from him.
Conclusion
Under s 17A(1)(b) of the Act, leave is required for an appeal against a costs order. This application for leave to appeal raises the question whether the grant of leave to a vexatious litigant to commence proceedings also permits that person to seek leave to appeal from the decision below, on the same basis as would apply to a person who has not been declared a vexatious litigant. Costs orders are discretionary orders to which the principle in House v The King[13] applies, so that in the absence of an error of principle, an appeal can only succeed if the trial judge has acted on a clearly erroneous view of the facts or the order is clearly unreasonable. This is a high threshold.
[13](1936) 55 CLR 499.
In this case, Knight is prohibited from ‘commencing’ a legal proceeding without leave of the Court. In Clemens v Phillip Morris Ltd,[14] it was held that where leave was granted to a vexatious litigant to commence proceedings in which he or she subsequently failed, leave was required under s 21(4) to initiate an appeal against that decision, even in a case where an appeal normally lay as of right. A fortiori, leave is required under s 21(4) by a vexatious litigant who seeks leave to appeal against a costs order arising out of the substantive proceedings.[15] Knight must therefore seek leave to apply for leave to appeal under s 21(4) of the Act. The applicant must satisfy the Court that the proceedings (in this case the application for leave to appeal) ‘are not and will not be an abuse of the process of the Court’. That requirement requires the applicant to meet an even higher threshold than that which applies to an application for leave to appeal against a costs order made by a person who has not been declared vexatious.
[14][2008] VSCA 48.
[15]The question whether the initiation of an appeal amounts to the ‘commencement’ or ‘continuation’ of a legal proceeding was left open in Kay v Attorney-General (2000) 2 VR 436, 446 [27] (Chernov JA). See also Bahonko v Casey City Council [2012] VSCA 310 [15]−[16].
We consider that the applicant has not met the requirements for the grant of leave to appeal to a vexatious litigant. Nor would he satisfy the lower threshold applicable to a person who has not been declared vexatious.
The usual rule is that the successful party in legal proceedings is entitled to an award of costs against the unsuccessful party.[16] Her Honour correctly referred to this principle and also noted in her reasons that Knight acknowledged that requirement. There is no substance to ground 2.
[16]Kheirs Financial Services Pty Ltd v Aussie Home Loans Pty Ltd (2010) 31 VR 46, 50 [15].
Ground 3 also fails. Her Honour found that the application did not meaningfully test the requirements of the regulations. We agree. As her Honour observed, the applicant’s real complaint was that he should have been given a different sentence management plan and that his security classification should be reduced. The Court has no jurisdiction to undertake a merits review of the Commissioner’s decision.
Further, her Honour held that even if the proceeding had some public interest component, its major focus was on the applicant’s private situation. It was well within the reasonable exercise of her Honour’s discretion to hold that any public interest which might have existed did not amount to special circumstances justifying departure from the general rule as to costs.
Her Honour also correctly held that neither the applicant’s status as a prisoner nor the fact that he has no assets or income from which costs could be recovered was determinative in deciding whether an order for costs should be made against him. Before Williams J and before us, the applicant argued that if the Commissioner attempts to recover costs from him, he will apply for voluntary bankruptcy. That is a matter for the applicant and is irrelevant to this application.
We agree with Williams J’s statement in her costs judgment that:
The Commissioner was entitled to…try to recoup public moneys spent in the process of defending an unsuccessful proceeding in which the Court recognised the futility of a grant of the relief sought.[17]
[17]Knight v Hastings (Re Costs) [2012] VSC 423 [19].
For these reasons, we would refuse the Hastings application.
The Wise application
Background
For some years, the applicant has attempted to obtain permission to purchase and maintain a computer in his cell. He has made a number of previous applications for leave to challenge earlier decisions by Corrections Victoria to refuse him in-cell computer access.[18]
[18]Knight v Money [2009] VSC 242, Knight v Hastings [2010] VSC 99 and Knight v Wise [2011] VSC 313.
The history of the first two applications is set out in the reasons for judgment of Hollingworth J (who considered the third application) as follows:
(a)In Knight v Money,[19] Byrne J refused leave to commence a proceeding seeking injunctive and declaratory relief, and relief in the nature of mandamus; and
(b)In Knight v Hastings & Roach,[20] Robson J refused leave to commence a proceeding seeking injunctive relief, but granted limited leave to commence a proceeding seeking declaratory relief. In TheCommissioner, Corrections Victoria v Knight,[21] the Court of Appeal upheld Robson J’s decision.[22]
[19][2009] VSC 242.
[20][2010] VSC 99.
[21](2010) 31 VR 567.
[22]Knight v Wise [2011] VSC 313, [8].
In her reasons for granting limited leave to commence proceedings against the Deputy Commissioner of Corrections Victoria, Hollingworth J held that the applicant had not established on the evidence that his right of access to the courts was impeded because he did not have a computer in his cell.[23] However, her Honour considered that it was arguable that the contents of the 2010 ‘List of Privileges’ for prisoners should be construed to permit access to an in-cell computer, so that the applicant was entitled to have his eligibility for an in-cell computer assessed in accordance with relevant policy guidelines and/or in accordance with procedural fairness.[24] She noted that there was evidence that more than 300 prisoners had in-cell access to computers and said that it was ‘hard to imagine’ that they had all been able to demonstrate a more pressing ‘need’ than the applicant to have such access because they were parties to more litigation or involved in more courses.[25]
[23]Ibid [40]−[45].
[24]Ibid [68].
[25]Ibid [72].
On that basis, her Honour concluded that the applicant was not ‘foredoomed to fail’ in the proposed proceedings and granted him leave to commence proceedings based on paragraph 2 of his originating motion. However, the leave granted did not extend to the claim that denial of access to a computer precluded Knight from exercising a right of unimpeded access to the courts.
The substantive matter then came on for hearing before Dixon J. At that hearing, Corrections Victoria conceded that Knight had not been given a hearing relating to his request to have a computer. His Honour quashed the decision of Corrections Victoria of 23 December 2010 denying the applicant access to a computer,[26] and remitted that decision for re-determination. His Honour noted under ‘Other Matters’ in the orders that:
By the affidavit of Nafsika Sahinidis sworn 26 March 2012, the defendant conceded error in the decision making process affecting his decision made 22 December 2010 and informed the court that he consented to an order granting the relief sought in the originating motion and stating the process by which he proposed to reconsider the decision. The plaintiff opposed the grant of the relief he seeks being made by consent.
[26]The decision by Corrections Victoria was made on either 22 or 23 December 2010.
Accordingly, it was unnecessary for his Honour to consider the other proposed grounds on the basis of which Hollingworth J had granted Knight limited leave to commence proceedings.
Following the quashing of the earlier decision, Corrections Victoria prepared a detailed ‘proposed decision’ dated 24 April 2012 in which it refused Knight’s application for an in-cell computer. The contents of the proposed decision are summarised below. Knight then sought leave under s 21 of the Act to challenge the refusal of access to a computer on the basis that the decision was unreasonable. Kyrou J refused leave on the basis that the proposed proceeding for judicial review was ‘foredoomed to fail’ because the affidavit material on which the applicant relied was incapable of satisfying the test of ‘Wednesbury unreasonableness’.[27] It is that decision from which the applicant now seeks leave to appeal.
[27]Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
Kyrou J discussed each of the particulars relied upon by the applicant as follows:[28]
[28]Knight v Deputy Commissioner, Corrections Victoria [2012] VSC 506 [48]−[58].
On its face, the Proposed Decision addresses the applicable criteria for determining applications for the purchase of in-cell computers in a rational and objective manner and takes into account the matters submitted by the Proposed Plaintiff in support of his application. The Proposed Decision explains that the refusal of the Proposed Plaintiff’s application is based on his circumstances, as outlined in the Proposed Decision, and indicates the reasons for the favourable and unfavourable decisions that have been made in relation to applications by other prisoners
It is trite law that, on an application for judicial review of an impugned decision, the power of the Court is limited to deciding whether the grounds of legal invalidity upon which the plaintiff relies are made out. It is not the function of the Court to consider the merits of the impugned decision. The judge’s personal views of the correctness, appropriateness or fairness of the impugned decision are irrelevant. Where the plaintiff fails to establish a legal ground of invalidity, the application for judicial review must be dismissed, even if the judge disagrees with the impugned decision.
There are sound constitutional and practical reasons why this Court cannot substitute its own view for the view of Corrections Victoria. Under our Constitution, it is the executive – acting through Corrections Victoria – rather than the judiciary that administers the laws relating to prisoners. As a result, Corrections Victoria is far more knowledgeable and experienced than this Court can ever be about issues concerning the management of prisoners – including education, welfare and security – that inform the framework within which decisions affecting prisoners are made.
In the present application, the issue for the Court is whether, on the basis of the affidavit material and submissions upon which the Proposed Plaintiff has relied, there is any prospect of satisfying the test of Wednesbury unreasonableness…Having considered each of the ‘particulars’ in the Proposed Proceeding … I am firmly of the view that there is no prospect.
The first particular is that the Proposed Decision is inconsistent with all other decisions of a like nature. The Proposed Decision explains why this assertion is factually incorrect. The Proposed Plaintiff is incapable of proving the correctness of the assertion and this is borne out by the fact that he has issued [a subpoena to obtain access to the documents]… [T]he Proposed Plaintiff has requested that the Court decide his application notwithstanding that the challenge to the subpoena remains unresolved.
The second particular is that the Proposed Decision is inconsistent without any rational justification. The issue of inconsistency has already been discussed. On its face, the Proposed Decision contains a rational justification for refusing the Proposed Plaintiff’s application.
The third particular is that the Proposed Decision impedes the Proposed Plaintiff’s access to the courts. This issue has already been determined against the Proposed Plaintiff by Hollingworth J in Wise. Accordingly, it would be an abuse of process for the Proposed Plaintiff to re-agitate this issue.[29]
[29]Phillip MorrisLtd v Attorney-General (Vic) (2006) 14 VR 538, 542 [20].
The fourth particular is that the approved lists of privileges for 2010 and 2012 include access to personal in-cell computers. The 2010 list included the item ‘access to in-cell electrical appliances (other than televisions, radios, fan, water heating device and shaver)’ and the item ‘access to computers or electronic games consoles and associated software’. The 2012 list, upon which the Proposed Decision was based, includes the item ‘[a]ccess to all in-cell electrical appliances (other than radios, fan, jug and shaver)’ and the item ‘[a]ccess to shared unit computers and unit electronic games consoles’. Whatever the position may have been in 2010, it is clear that, in 2012, the list of privileges does not include access to an in-cell computer. The Proposed Plaintiff argued that the privilege concerning access to in-cell electrical appliances is wide enough to include access to in-cell computers. In my opinion, the existence of a specific and narrowly-worded privilege concerning access to in-cell computers precludes such access from falling within the broad privilege dealing with electrical appliances.[30]
[30]His Honour appears to have misspoken in referring to ‘a specific and narrowly-worded privilege concerning access to in‑cell computers’. It is apparent from the context that he intended to refer to shared unit computers.
The fifth particular is that the Proposed Defendant applied policy guidelines to the Proposed Plaintiff in a manner that differed from other prisoners without any rational justification. This particular overlaps with the first and second particulars and is incapable of being made out on the basis of the materials submitted by the Proposed Plaintiff.
The final particular is that more than 300 applications by other prisoners have been approved even though they met less eligibility criteria than the Proposed Plaintiff’s application. This particular also overlaps with the preceding particulars and it too is incapable of being made out.
The observation of Hollingworth J in Wise…must be considered in the light of her Honour’s statement that she had not seen the 300 applications. The Proposed Plaintiff does not have the alleged 300 applications in his possession
and that is why he has sought their production pursuant to a subpoena. The Proposed Decision explains the outcome of applications by prisoners whose circumstances are comparable to the Proposed Plaintiff’s circumstances and notes that the Proposed Plaintiff is one of 12 prisoners whose applications have been rejected since April 2009.
For these reasons, his Honour concluded that the proposed proceeding constituted an abuse of process.[31] Accordingly, he refused Knight’s application for leave to commence the proposed proceeding.
[31]Knight v Deputy Commissioner, Corrections Victoria [2012] VSC 506 [59].
Proposed grounds of appeal
The applicant seeks leave to appeal against Kyrou J’s decision on the following grounds:
1. That the Court below erred in not finding that the grounds which the Court had previously granted leave to proceed on (in Knight v Hastings & Knight v Wise) & which remained extant in relation to the cause of action necessitated a grant of leave in the instant proceeding, particularly given that neither of the previous proceedings had not gone to trial.
2. That the Court below erred in determining the plaintiff’s application in the absence of relevant documents sought to be produced by subpoena, when those documents were relevant to the plaintiff’s argument of inconsistent treatment (at [35], [52], [56], [57] and [52]).
3. That the Court below erred in finding that the ‘plaintiff requested that a decision on the application not be delayed until after Daly AsJ decided whether or not to set aside the subpoena’ (at [36] & [52]).
4. That the Court below erred in finding that ‘the Proposed Decision contains a rational justification for refusing the Proposed Plaintiff’s application’, on the basis of unsworn and untested assertions by the Proposed Defendant (at [30] and [53]).
5. That the Court below erred in finding that ‘it would be an abuse of process for the Proposed Plaintiff to re-agitate’ the issue of unimpeded access to the courts (at [54]).
6. That the Court below erred in finding that the Approval of Annual List of Privileges 2012 did ‘not include access to an in-cell computer’ (at [55]).
Conclusion
A question arises as to the threshold test to be applied when a vexatious litigant seeks leave to appeal against a decision to refuse leave to commence proceedings under s 21(4) of the Act. Knight contended that it would be unfair to require him to satisfy the Court that the appeal was not an abuse of process before granting him leave to appeal, and that the Court should simply apply the same test which applies when a litigant who has not been declared vexatious seeks leave to appeal under s 17A(4)(b) of the Act against a judgment or order in an interlocutory application.[32] Leave to appeal against such an order will not be granted unless the applicant shows that the judgment was attended by sufficient doubt to justify the grant of leave and that substantial injustice would be done if the decision were to stand.[33]
[32]As to the interlocutory nature of the order: see Kay v Attorney‑General (2000) 2 VR 436, 449−50.
[33]Niemann v Electronic Industries [1978] VR 431, 442.
Section 21(4) of the Act provides that:
Leave must not be given unless the Court, or if the order under subsection (2) so provides, the inferior court or tribunal is satisfied that the proceedings are not or will not be an abuse of the process of the Court, inferior court or tribunal.
The onus rests on the vexatious litigant to establish that the proposed proceeding will not be an abuse of the process. This provision was considered by this Court in Shaw v Attorney General,[34] in which Maxwell P explained that:
One form of abuse of process is commencing a proceeding which has no prospect of success, that is, is hopeless or… is “foredoomed to fail”. Where a proceeding has no legal merit whatsoever, it would be a waste of the court’s time to have to deal with it.
…
The courts must be able to place a limit on those who would otherwise take up an unreasonable amount of available court time. Declaring a person a vexatious litigant is designed to prevent the precious time of the courts of the State being taken up on issues that simply do not justify the time.[35]
[34][2011] VSCA 63.
[35]Ibid [14]−[16].
In Kay v Attorney-General,[36] this Court held that an appeal could be brought under s 17(2) of the Act against an order declaring a person to be a vexatious litigant.[37] Thus the applicant in that case did not require leave of a judge to file a notice of appeal against the order declaring him to be a vexatious litigant and prohibiting him from commencing or continuing legal proceedings without leave of the court.
[36](2000) 2 VR 436.
[37]Counsel for the respondent made a concession to this effect which Chernov JA accepted was correctly made (Ormiston and Batt JJA agreed with Chernov JA).
Chernov JA, who delivered the main judgment, said that if s 21(3) of the Act operated to prevent a person from seeking leave to appeal against an order declaring him or her vexatious ‘there would be a multiplicity of interlocutory proceedings, with a possibility that the real issue ― the correctness or otherwise of the s 21(2) order ―may never reach the Court of Appeal’.[38]
[38]Kay v Attorney-General (2000) 2 VR 436, 447 [29].
Kay v Attorney-General is distinguishable from the circumstances of this case. The applicant is not seeking leave to appeal against the order declaring him vexatious, but rather against the refusal of leave to commence proceedings under s 21(4). In Shaw v Attorney-General,[39] this Court held that where a vexatious litigant seeks leave to appeal against a trial judge’s refusal to grant leave to that person to commence proceedings, the applicant must persuade the Court that what is proposed will not be an abuse of process ― that is, that the proceedings are not ‘foredoomed to fail’.
[39][2011] VSCA 63.
The applicant’s submissions on that issue are similar to those he made below. In support of his first ground of appeal, he argues, in effect, that because Hollingworth J granted him leave to appeal on a number of grounds which were not determined in the proceedings before Dixon J, as a consequence of Corrections Victoria consenting to the quashing of the decision not to give him access to a computer, he should now be given leave to pursue those other grounds, which related to the contents of the 2010 List of Privileges and to the alleged inconsistency in denying him access to an in-cell computer whilst permitting 300 other prisoners to have such access.
This proposed ground is hopeless. The decision in relation to which leave was sought from Hollingworth J was a different decision from that for which leave was sought from Kyrou J, although the applicant’s grounds of challenge were similar. But in any case, the substance of the applicant’s complaints relating to the alleged unreasonableness of the Deputy Commissioner’s decision were carefully examined by Kyrou J.
In support of grounds 2 and 3, the applicant submits that factual matters bearing on whether he is entitled to have access to a personal computer have never been determined and that it was unfair to expect him to satisfy the requirements for a grant of leave under s 21(4) of the Act when he had not obtained access to relevant documents and witnesses. If leave is granted, the applicant intends to argue that other prisoners have been granted access to in-cell computers and that the decision to deny him similar access cannot be justified. He has previously served on the Deputy Commissioner a subpoena requiring production of all applications and supporting documents for access to a personal computer filed with Corrections Victoria and all documents concerning approvals granted for personal computers since 23 August 2006. An application was made by the Deputy Commissioner to set the subpoena aside and was heard by Daly As J on 21 September 2012, but no judgment was handed down in those proceedings prior to the delivery of judgment by Kyrou J on 31 October 2012.
The applicant contends that Kyrou J should not have delivered judgment on his application for leave to commence proceedings until Daly AsJ had decided whether the subpoena should be set aside. Knight asserts that his Honour wrongly found that he had requested that the decision whether he should be granted leave under s 21(4) of the Act be made prior to Daly As J handing down her decision.
During the hearing Kyrou J asked the applicant:
Whether your application was in any way contingent on successfully obtaining documents pursuant to the subpoena or whether it was proposed that you would proceed independently of that.
Shortly afterwards, the applicant referred to the subpoena which ‘the other side has objected to’. There was then the following exchange between his Honour and the applicant:
HIS HONOUR: But you say that you wish me to consider your application as articulated in the 5 October originating motion now irrespective of what happens to your subpoena, is that right?
PLAINTIFF: Yes, Your Honour. If Your Honour was so minded to grant the application for leave, then the subpoena would then carry on over to the substantive hearing.
HIS HONOUR: Yes, I understand what you’re saying.
Towards the end of the hearing the matter was raised again as follows:
PLAINTIFF: Sorry for interrupting, Your Honour. If I may, the only question that remains to be resolved is with respect to the defendant’s application to set aside the subpoena. Will that come on before Her Honour Associate Justice Daly prior to Your Honour’s decision?
HIS HONOUR: I understood that that had been argued before Associate Justice Daly and she has reserved her decision. Is your question along the lines - - -
PLAINTIFF: Obviously, Your Honour, if Her Honour, the associate justice, decides to issue the subpoena, then obviously I would seek to have those documents provided to Your Honour prior to Your Honour making a decision as to the application for leave.
HIS HONOUR: Yes, I understand. I don’t know what time frame Associate Justice Daly would be working towards but clearly if, as a result of any decision she makes, you are entitled to other documents which you believe are relevant, then I’ll give you leave to supplement your material so that you can then file those documents and get them to me so that I can take them into account.
His Honour then said that:
But I think logically, if I decide the application before Associate Justice Daly does, then I’m not going to have those documents to look at but if she determines in your favour that the documents should be produced and I haven’t yet concluded my decision, then I think commonsense would dictate that I have a look at the documents to see if they have any bearing on my
thoughts as they are at that time. So the initiative would have to come from you to notify my associate when you become aware that Associate Justice Daly has determined that matter.
Some latitude should be extended to the applicant as a self-represented litigant. At first glance, it appears odd that Kyrou J should not have reviewed material on which the applicant may have relied in the substantive proceeding prior to reaching his decision. However, in light of the applicant’s agreement to his Honour doing so, he cannot possibly maintain that he did not agree to his Honour delivering judgement prior to the handing down of Daly As J’s decision. It follows that proposed grounds 2 and 3 are hopeless.
Under cover of ground 4, the applicant argues that the judge wrongly found that there was no prospect that he could show that the proposed decision satisfied the test for unreasonableness which applies under the Wednesbury principle.
Kyrou J’s reasons contain a comprehensive summary of the contents of the proposed decision refusing the applicant access to an in–cell computer. Without repeating this summary, we note that the decision stated as follows:
·because of the difficulty of supervising use of in-cell computers, Corrections Victoria’s policy is that their availability should be restricted to cases where use of a computer is necessary for educational purposes, for the preparation of a criminal trial or where there is ‘a compelling release-preparation need’;
·the applicant’s education workload ‘would appear to be manageable with [his] current computer access’;
·the applicant was not engaged in any outstanding criminal matters, although he had civil matters on foot; his history of initiating civil proceedings showed that his lack of access to an in-cell computer had not impeded his access to the courts; and
·access to an in–cell computer had been granted to one long term prisoner with significant learning difficulties, in order to assist his reintegration into the community, but the applicant’s computer proficiency indicated that access was not required to increase his employability or communication skills. In any case, he was not in the last 12 months of his sentence.
Finally, Kyrou J said that:
The Proposed Defendant rejected the suggestion that the Proposed Plaintiff had been ‘singled out for special treatment’ in relation to his in-cell computer application. The Proposed Defendant stated that since April 2009, there had been around 36 computer matters considered by the Major Offenders Review Panel, many of which had been either reapplications or reconsiderations of deferred cases; and that of the eight applications that were approved in that period, almost all were approved on the basis of the prisoners’ outstanding criminal trials or appeals. According to the Proposed Defendant, the Proposed Plaintiff was one of 12 prisoners whose applications had been rejected in that period.[40]
[40]Knight v Deputy Commissioner, Corrections Victoria [2012] VSC 506 [30].
The applicant challenges the reliance which the proposed decision placed on the outcome of 36 computer matters considered by the Major Offenders Review Panel and contends they do not demonstrate the reasonableness of the decision to deny him a computer. In particular, he says that:
These assertions were contained in the letter dated 24 April 2012 from the Proposed Defendant to the Proposed Plaintiff. Many of these assertions are disputed by the plaintiff. One series of assertions that are disputed is relevant for present purposes: the defendant asserted that 36 ‘computer matters’ (not necessarily applications) were considered by the Major Offenders Review Panel (‘MORP’) from April 2009 (to April 2012). In response, the plaintiff states the following:
–The plaintiff’s subpoena was for all applications and approvals since 23 August 2006 (not April 2009);
–The MORP is responsible only for the 80-90 prisoners listed as Major Offenders, not for the remainder of the 4,884 prisoners in the Victorian prison system (as at 30 June 2012);
–The 36 ‘computer matters’ concerned only 20 prisoners (8 approvals & 12 rejections);
–The 11 other rejections concerned prisoners who had previously had access to an in‑cell computer but who had lost access to them for disciplinary reasons;
–The distinction by the defendant between approving applications in instances where a prisoner is represented in a criminal matter, and the
instant application where the plaintiff is a self‑represented prisoner in a civil matter, is not permissible at common law; &
–Many more than 8 prisoners have access to personal in‑cell computer in the Victorian prison system.
Even if the applicant’s assertion that more than 300 applications by other prisoners have been approved were accepted, this would not necessarily demonstrate that the decision was unreasonable in the Wednesbury sense, in the circumstances of his case.
Under cover of ground 6, the applicant submits that his Honour incorrectly interpreted the 2012 List of Privileges, because an in-cell computer was necessarily included under the category ‘in-cell electrical appliance’. Although the Commissioner of Corrections was not a party to the Wise application, counsel for the Commissioner made some submissions to assist us. She contended that the List of Prisoner Privileges, which must be prepared annually under regulation 49 of the Corrections Regulations 2009, does not confer any right or legitimate expectation that a prisoner will be accorded the relevant privileges, but relates only to the provision in s 50(5)(b) of the Corrections Act 1986 under which one of the possible sanctions for a prisoner offence is the withdrawal of one of the prisoner’s privileges for less than 14 days.[41]
[41]With minor exceptions, the references to ‘privileges’ in the Corrections Act 1986 are made the context of ‘prison discipline’ in Part 7.
In his reasons, Kyrou J did not consider this matter and it is unnecessary for us to do so.
In our view, his Honour correctly held that when the reference in the List of Privileges to ‘in-cell electrical appliances’ is read alongside the reference to use of ‘shared unit computers’, the applicant’s argument cannot be sustained.
Finally, the applicant argued that the Court should grant him leave under s 21(4) because considerable court time had already been expended in determining his previous applications and that, if leave were refused, he would simply make a new request for access and if it was refused, he would apply for leave again. The fact that a vexatious litigant is unwilling or psychologically unable to desist from litigation which causes a substantial waste of court resources does not justify the grant of leave under s 21(4) of the Act. Rather it supports its refusal.
For these reasons, we consider that, if leave to appeal were granted to the applicant, the proposed proceeding would be an abuse of process. Accordingly, we refuse the Wise application.
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