Knight v Hastings

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PRACTICE COURT

No 9420 of 2003

IN THE MATTER of an application for leave pursuant to s 21 of the Supreme Court Act 1986
BETWEEN
JULIAN KNIGHT	Plaintiff
AND
THE ATTORNEY GENERAL FOR THE STATE OF VICTORIA	Defendant
AND BETWEEN
JULIAN KNIGHT	Proposed Plaintiff
AND
ROBERT HASTINGS and	Proposed Defendants
DENNIS ROACH

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATES OF HEARING:	24 February and 10 March 2010
DATE OF JUDGMENT:	3 May 2010
CASE MAY BE CITED AS:	Knight v Hastings
MEDIUM NEUTRAL CITATION:	[2010] VSC 99

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VEXATIOUS LITIGANT - application for leave to institute proceedings by a prisoner against the prison authorities - proceedings seek an order in the nature of mandamus to compel the prison authorities to permit the applicant/prisoner the use of an in cell computer and/or appropriate declarations on ground that refusal to permit the use of an in cell computer is or will impede the prisoner’s common law right to unimpeded access to the courts in relation to the balance of the applications he seeks to bring against the prison authorities – application refused to bring proceedings for injunction - application granted to bring proceedings to seek a declaration – s 21 Supreme Court Act 1986

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	In person	-
For the defendant	No appearance
For the first proposed defendant	Mr Travis P Mitchell	Corrective Services
For the second proposed defendant	No appearance

Cases cited:

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

Attorney-General (Victoria) v Knight [2009] VSC 465

Bennett v Bennett (2001) 167 FLR 137

Coco v R (1993) 179 CLR 427

Dagi v The Broken Hill Proprietary Co Ltd [2000] VSC 486

Flynn v R (1949) 79 CLR 1

Knight v Anderson (2007) 16 VR 532

Knight v Corrections Victoria [2009] VSC 607

Knight v Money [2009] VSC 242

NAFC v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 126 FCR 99

Phillip Morris Ltd v Attorney-General (Vic) (2006) 14 VR 538

R v Rich (Ruling No 2) (2008) 184 A Crim R 161

R v Rich (Ruling No 3) [2008] VSC 219

R v Rich (Ruling No 20) [2009] VSC 24

R v Rich (Ruling No 22) [2009] VSC 39

R v Secretary of State for the Home Department; Ex parte Leech (No 2) [1994] QB 198

Raymond v Honey [1983] 1 AC 1

Rich v Groningen (1997) 95 A Crim R 272

Rich v Magistrates’ Court of Victoria [2007] VSC 65

Rich v Secretary to the Department of Justice [2007] VSC 405

Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317

STAATS v United States of America (1992) 66 ALJR 793

HIS HONOUR:

INTRODUCTION AND SUMMARY

Julian Knight, a prisoner held at Port Phillip Prison (“PPP”), has been declared a vexatious litigant. By an originating motion and supporting summons dated 17 December 2009, Mr Knight seeks leave to commence proceedings by way of originating motion against the defendants seeking an order in the nature of a mandatory injunction requiring the defendants to approve Mr Knight’s applications dated 12 August 2009 and 8 December 2009 for access to a personal in-cell computer, and to supply that computer, prior to the hearing of three substantive applications (as described below), on several grounds and a declaration that a prisoner’s common law right of unimpeded access to the court encompasses having meaningful access to the means of producing court documents (“the computer proceedings”).

The first proposed defendant, Robert Hastings, is the Correctional Services Commissioner and the second proposed defendant, Dennis Roach, is the Port Phillip Prison Director.

Mr Knight also seeks leave to make, what he describes as, three substantive applications. First, he seeks leave to initiate proceedings seeking an order from the court in the nature of mandamus requiring Mr Hastings, pursuant to rr 22 to 23 and 25 to 26 of the Corrections Regulations 2009, to :

(a) review Mr Knight’s classification and placement,

(b) review Mr Knight’s Security Rating,

(c) consider Mr Knight for a placement at a Medium Security prison,

(d) formulate a Sentence Plan for Mr Knight, and

(e) provide Mr Knight with a copy of the Plan.

Secondly, he seeks leave to initiate proceedings seeking an order from the court in the nature of a mandatory injunction requiring the proposed first defendant to furnish Mr Knight with a copy of the report concerning Mr Knight’s Tier 2 Assessment, and to arrange for Mr Knight to be able to participate in programs designed to address his offending behaviour as recommended in the Tier 2 Assessment report.

Thirdly, he seeks leave to make an application to the court for an order in the nature of a mandatory injunction requiring the defendants to consider Mr Knight’s application of 5 October 2009 to attend the Port Phillip Prison “Prisoner Listener” course.

This judgment relates to the application for leave to commence proceedings against the defendants seeking an order in the nature of a mandatory injunction requiring the defendants to approve Mr Knight’s applications dated 12 August 2009 and 8 December 2009 for access to a personal in-cell computer, and to supply that computer, prior to the hearing of “the substantive application” and the application for the declaration. The present hearing does not involve any consideration of the three “substantive applications” for leave to bring the proceedings described above.

For the reasons that follow, Mr Knight’s application to commence the computer proceeding is granted in part. Leave is refused in relation to the mandatory injunction but leave is granted to Mr Knight to institute proceedings in relation to the declaration.

MR KNIGHT’S CURRENT APPLICATION

Mr Knight seeks leave to bring a proceeding to obtain an order in the nature of a mandatory injunction requiring the defendants to approve his applications dated 12 August 2009 and 8 December 2009 for access to a personal in-cell computer, and to supply that computer, prior to the hearing of the substantive applications on the grounds that:

(i) The defendants’ decisions breach the plaintiff’s right at common law, and pursuant to s 47(2) of the Corrections Act 1986, of unimpeded access to the courts, as it has the aim and/or effect of hindering the plaintiff’s preparation of proceedings for which he has already been granted leave to proceed, and the plaintiff’s preparation of applications for leave to proceed,

(ii) the defendants’ decisions to deny the plaintiff’s applications contravene the no bias rule of natural justice as a reasonable person would apprehend that the decision made by the defendant was not free from bias, given that every other application made by other prisoners on legal grounds has been approved,

(iii) the defendants’ decisions to deny the plaintiff’s applications exhibit the nature of an inflexible policy in that it applies policy criteria excluding the access to a personal computer for outstanding civil matters without due regard to the merits of the plaintiff’s applications,

(iv) the defendants’ decisions to deny the plaintiff’s applications are an improper exercise of power as it was so unreasonable that no reasonable body would have reached it, given that:

(a) Highly significant factors were not given proper weight;

(b) The decisions could not have been reasonably made on the information available;

(c) The decisions are inconsistent with all other decisions of a like nature;

(d) The decisions are inconsistent without any rational justification;

(e) The defendants applied supposed policy guidelines against the plaintiff and not against other comparable applicants without any rational justification;

(f) More than 300 applications by other prisoners have been approved even though they met less eligibility criteria than the applications made by the plaintiff; and

(g) The decision is improperly discriminatory against the plaintiff as the plaintiff is the only prisoner who has been declared a vexatious litigant.

(v) The defendants’ decisions to deny the plaintiff’s application are an improper exercise of power as they fail to take into account relevant considerations, namely:

(a) The plaintiff is a party to two active Supreme Court matters and only one VCAT matter;

(b) The plaintiff only has limited access to prison computers;

(c) The plaintiff has education commitments in addition to his responsibilities to prosecute the proceedings in which he is the plaintiff or applicant; and

(d) All documents produced for matters in the Supreme Court of Victoria and before VCAT are required to be printed.

He also seeks leave to commence proceedings to seek from the court a declaration that a prisoner’s common law right of unimpeded access to the court encompasses having meaningful access to the means of producing court documents.[1] The matter was conducted on the basis that this application is also sought prior to and for the purpose of the hearing of the substantive applications.
[1]Origination motion 3(b).

THE EVIDENCE AND SUPPORTING SUBMISSIONS

In support of his application Mr Knight relies on his affidavits of:

(a) 17 December 1989;

(b) 14 January 2010;

(c) 4 March 2010;

(d) 16 March 2010; and

(e) 23 March 2010.

Mr Knight made oral submissions to the court on 10 March 2010 and written submissions of 30 March 2010.[2]
[2]Since the conclusion of the hearing and the receipt of written submissions that were filed with the leave of the court, Mr Knight has filed without the leave of the court a further affidavit of 13 April 2010, an originating motion dated 13 April 2010, a further affidavit of 13 April 2010, a revised page 39 of his submissions and a copy of Sunshine Coast Broadcasters Ltd v Duncan (1988) 83 ALR 121. I have perused these documents. If admitted, which they have not been, they would not have altered my decision.

Only the first defendant was represented on the hearing of the application for leave. He relied on no evidence. Mr T P Mitchell of counsel made oral submissions on his behalf on 10 March 2010. A written outline of submissions was tendered on his behalf on 10 March 2010 and submissions in reply on 8 April 2010.

MR KNIGHT’S CURRENT COURT AND TRIBUNAL PROCEEDINGS

Apart from the instant proceeding, Mr Knight deposes he is the self represented litigant in another Supreme Court proceeding, Knight v Anderson; an appeal to the Court of Appeal, Knight v Money; and two Freedom of Information (“FOI”) appeals to VCAT (Knight v Corrections Victoria (1) and Knight v Corrections Victoria (2)).[3] He deposes that he also expects to be filing a further application for leave to the Court in relation to another FOI appeal in the near future.
[3]Affidavit of 4 March 2010.

He says the current active proceedings are as follows:

(a) Knight v Anderson (Supreme Court Case No 9363/2006), for which conditional leave has been granted.[4] A notice of discontinuance in relation to this proceeding was filed by Mr Knight on 16 February 2010, but an application for costs was made by Corrections Victoria on 18 February 2010;
[4](2007) 16 VR 532.

(b) An appeal submitted on 21 July 2009 to the Court of Appeal in relation to the decision in Knight v Money;[5]
[5][2009] VSC 242.

(c) An appeal against an FOI decision by Corrections Victoria which has been filed with VCAT, pursuant to a grant of leave on 7 October 2009 (Attorney-General (Victoria) v Knight);[6]
[6][2009] VSC 465.

(d) An appeal against an FOI decision by Corrections Victoria which has been filed with VCAT, pursuant to a grant of leave on 18 December 2009 (Knight v Corrections Victoria);[7] and

(e) The instant proceedings.

[7][2009] VSC 607.

In substance, Mr Knight contends that he will be impeded in properly conducting the three substantive applications unless he is given leave to institute and succeed on the computer proceedings

PRISONER ACCESS TO PERSONAL IN CELL COMPUTERS

For the purposes of this application I refer to Mr Knight’s evidence on this matter.

Prisoners in the Victorian prison system have been permitted access to personal in cell computers since 1986.

In May 2009 the then Commissioner of Corrections Victoria issued a Commissioner’s Requirement titled Prisoner Property: Prisoner Computers.[8] This requirement applies in all prisons. This Commissioner’s Requirement was also replicated as Director’s Instruction No 4.14 Prisoner Computers (“DI 4.14”) which applies only in government prisons. Whilst the Commissioner’s Requirements are not amended but superseded by new requirements, DI 4.14 is able to be amended. The last date of issue for DI 4.14 is 11 May 2009.
[8]Exhibit JK 5; Affidavit of Knight of 4 March 2010 [24].

The so called “philosophy” of the Commissioner’s Requirement regarding Prisoner Computers, is stated, inter alia, as:

Corrections Victoria may allow prisoners to have a personal computer in their accommodation, where it can be demonstrated that there is a genuine educational or legal benefit to the prisoner or a positive contribution to the prisoner’s sentence plan and rehabilitative need.[9]

[9]Exhibit JK 5, p 1.

The Commissioner’s Requirement regarding Prisoner Computers lists three eligibility criteria: legal, education/training and exceptional circumstances. It describes the legal criteria as:

The prisoner is unconvicted or has an outstanding legal matter or outstanding appeal and requires a computer to assist in the preparation of their case/defence.[10]

[10]Exhibit JK 5, p 2.

The Corrections Victoria policy on prisoner access to personal in cell computers is also outlined on the internet on the website: type="1">
The Corrections Victoria policy on ‘Personal Computers in Prison’ published on its website, states that:

If a prisoner needs to prepare for a legal case, is participating in an education program or can show that a computer would benefit their sentence plan or rehabilitation, then they can apply for permission to purchase a computer.

In relation to the application process, the Corrections Victoria policy states that;

Prisoners apply in writing to prison management to request permission for a personal computer.

Mr Knight says that the Supreme Court of Victoria has heard, or listed for trial, at least five cases concerning prisoner access to personal in cell computers since 2003:
(a)Minogue v Anderson Case No 6325 of 2003,
(b)Minogue v Spadano & Clements Case No 4235 of 2004,
(c)Camilleri v Wise Case No 7762 of 2006,
(d)Rich v Secretary to the Department of Justice [2007] VSC 405, and
(e)R v Rich [2008] VSC 141.
He says that the prisoners in each of these cases subsequently had their seized personal in cell computers returned to them (Minogue & Camilleri) or was granted approval for a personal in cell computer (Rich).[11]
[11]Affidavit of Knight of 16 March 2010 [4].

Mr Knight claims that the vast majority of the 300 plus prisoners who have been given approval to access a personal in cell computer are convicted murderers and that the vast majority of approvals have been granted on legal or educational training grounds.[12]
[12]Affidavit of Knight of 16 March 2010 [5].

HISTORY OF MR KNIGHT’S COMPUTER APPLICATIONS

For the purpose of setting out the history of Mr Knight’s applications I have repeated the evidence in Mr Knight’s affidavits.

Since 23 August 2006, Mr Knight has made eight applications for access to a personal in cell computer. His last application was made at PPP on 8 December 2009. The dates of the applications are as follows:
(a)23 August 2006
(b)25 October 2006
(c)14 July 2008
(d)6 January 2009
(e)6 March 2009
(f)25 March 2009
(g)12 August 2009
(h)8 December 2009
Corrections Victoria has rejected all of these applications.
On 23 August 2006, whilst a prisoner at Her Majesty’s Prison Barwon (“Barwon Prison”), Mr Knight submitted an Application for Access to a Personal Computer. His application was on legal, educational, vocational, and integration grounds. This application was filed but not processed.

On 25 October 2006, Mr Knight submitted a further Application for Access to a Personal Computer. On this occasion his application was on legal grounds. This application was filed but not processed.

On 19 June 2007, Mr Knight was transferred from Barwon Prison to PPP.

On 20 June 2007, the day after he was transferred to PPP, he enrolled in the Certificate II in IT course at the PPP education centre. The PPP education centre is operated by Kangan Batman TAFE.

On 14 July 2008, he submitted an application for access to a personal in cell computer to unit staff in Waaksembyd Unit at PPP. He made his application on all three eligibility grounds: legal, educational/training, and integration needs. This application was supported by the manager of the PPP Education Centre and by his legal advisors at Darebin Community Legal Centre.

Mr Knight says his application was subsequently approved by the Director of PPP, and a quotation for the purchase of a computer was obtained from Stone Computers (Australia) Pty Ltd on 6 August 2008.

On 21 August 2008, he was notified that his application had been approved. At some point in mid to late August 2008 the approval of his application for access to a personal in cell computer was rescinded by Corrections Victoria.

On 30 December 2008, Mr Knight was notified by Assistant Commissioner for Offender Management Services (“Assistant Commissioner (OMS)”) Brendan Money that he would have to re-submit his application for access to a personal in cell computer.

On 6 January 2009, Mr Knight re-submitted his application for access to a personal in cell computer. Mr Knight, inter alia, relied on the legal basis and referred to two Supreme Court matters he was involved in at the time.[13]
[13]Exhibit JK 25.

He says that his re-submitted application was approved by a unit officer and a supervisor on 6 January 2009, on 7 January 2009, by the PPP Review and Assessment (“R&A”) Committee on 8 & 12 January 2009, and by PPP Director Dennis Roach on or about 16 January 2009. Mr Knight says this application was ultimately rejected by Corrections Victoria on 2 March 2009 and this rejection was the subject of the Supreme Court proceeding decided by Byrne J in Knight v Money.[14]
[14]Affidavit of Knight of 16 March 2010 [15].

On 19 February 2009, Mr Knight wrote to the Department of Justice concerning his computer applications.

On 2 March 2009, Mr Brendan Money, the Acting Assistant Commissioner, OMS, of Corrections Victoria wrote to Mr Knight explaining why it “appears” he was not eligible for an in cell computer. When dealing with the legal basis of Mr Knight’s application he suggested that a factor militating against Mr Knight’s application was that he was a vexatious litigant. His letter relevantly said :

Ultimately, the decision whether or not to permit you to have an in cell computer is made by the Commissioner, Corrections Victoria. An in cell computer is a privilege, and approved for a computer is considered very carefully.
As you are classified as a major offender, your application, after recommendation by Port Phillip Prison, is reviewed by the Major Offenders Review Panel, before submission to the Commissioner.
The eligibility criteria, for which an in cell computer is considered, are legal, education or training, and integration needs.
The envisaged legal issues are primarily defending charges for remand prisoners and dealing with possible appeals against the convictions and sentences. While civil actions may justify an in cell computer, in your position as a declared vexatious litigant, it is not appropriate. I believe there would be legitimate community concerns. [15]

[15]Exhibit JK 17.

As indicated above, this decision was the subject of the proceeding decided by Byrne J in Knight v Money.[16]
[16][2009] VSC 242; Affidavit of Knight of 16 March 2010 [3].

On 6 March 2009, Mr Knight submitted an application for temporary access to a personal in cell computer on legal grounds. This application was rejected by Corrections Victoria.[17]
[17]Affidavit of Knight of 16 March 2010 [7].

On 14 March 2009, Mr Knight was notified that the application he had submitted on 6 January 2009 had been rejected by Corrections Victoria.[18]
[18]Affidavit of Knight of 4 March 2010 [44].

On 17 March 2009, Mr Knight submitted a Prisoner Request Form at PPP in which he requested permission to store legal files in the Waaksembyd Unit storeroom.[19] He says this request was not approved with the notation that the files were “Not to be stored in back room. Only comp[uter] boxes”.[20]
[19]Affidavit of Knight of 16 March 2010 [6].
[20]Exhibit JK 18.

On 19 March 2009, Mr Knight wrote to Mr Money in furtherance to his letter of 19 February 2009.[21] He referred to his application for temporary access to a personal in cell computer on legal grounds submitted on 6 March 2009 and asked Mr Money to consider it.[22]
[21]Exhibit JK 19.
[22]Affidavit of Knight of 16 March 2010 [8].

Mr Knight also raised Mr Money’s reference to Mr Knight being a vexatious litigant in his letter of 2 March 2009. Mr Knight said that he noted that Mr Money relied on the override power contained in the ‘community concerns’ passage in the Director’s Instruction No 4.14 to refuse his computer application and asserted: “You make this decision on the grounds that I am a vexatious litigant”.[23]
[23]Exhibit JK 19.

On 25 March 2009, Mr Knight wrote to Acting Commissioner Rod Wise in relation to his application submitted on 6 March 2009 for temporary access to a personal in cell computer on legal grounds.[24] Mr Knight referred to the application he had before the Supreme Court, Knight v Money, in which directions were made on 24 March 2009, including for the filing of affidavits and outlines of submissions.
[24]Exhibit JK 20; Affidavit of Knight of 16 March 2010 [9].

He asked for access to a personal computer for the duration of that proceeding. Mr Knight referred to the fact that the workload involved in preparing the necessary case documents was considerable. He said that he had only been able to produce the necessary court documents “in haste and with some difficulty”.[25] This application was rejected by Corrections Victoria by letter of 14 April 2009.[26] The grounds for refusal were said to be set out in Mr Money’s letters of 2 March 2009 and of 2 April referred to below.
[25]Exhibit JK 20.
[26]Exhibit JK 22.

On 2 April 2009, Mr Money responded to Mr Knight’s letter of 19 March 2009 and in particular to Mr Knight’s statement that “You make this decision on the grounds that I am a declared vexatious litigant”.[27] Mr Money said in relation to that observation:

The decision to refuse your application for an in cell computer was, as noted in my letter of 2 March 2009, made on a number of grounds. Your current status as a vexatious litigant was one of many circumstances to be considered in relation to your application. Decisions on applications of this kind are made on the basis of all relevant circumstances relating to the prisoner and the prison in which the prisoner is located….[28]

[27]Affidavit of Knight of 16 March 2010 [10] – [11].

[28]Exhibit JK 21.

Mr Money further said that:

The documents attached to your letter do not identify any relevant change in your circumstances since my decision of 2 March which would now justify a different decision.

On 14 April 2009, Mr Money, wrote to Mr Knight in response to his letter to Rod Wise of 25 March 2009.[29] In relation to his application for temporary access to a personal in cell computer on legal grounds Mr Money wrote that “I have considered your application and rejected it”.
[29]Exhibit JK 22; Affidavit of Knight of 16 March 2010 [12].

On 10 May 2009, Mr Knight wrote to Mr Money informing him that his Supreme Court matter had been adjourned for 2-3 weeks. He advised Mr Money that he proposed to seek to set aside or revoke the order making him a vexatious litigant. He asked Mr Money: “Would you please advise me whether you would be prepared to approve my application for a personal in cell computer if I was no longer a declared vexatious litigant”. He also advised Mr Money he had enrolled in a Bachelor of General Studies course in Griffith’s University. He again pressed for reconsideration of his application for an in cell computer.[30]
[30]Exhibit JK 23; Affidavit of Knight of 16 March 2010 [13].

On 19 May 2009, Mr Money replied to Mr Knight’s letter of 10 May 2009 effectively denying his application to reconsider his application. Mr Money again referred to the vexatious litigant issue. He said: “As I have indicated previously, the issue of you being a vexatious litigant supports my concerns about your continuing lack of judgment and insight into your behaviour rather than in relation to your eligibility for an in cell computer”.[31]
[31]Exhibit JK 24; Affidavit of Knight of 16 March 2010 [14].

On 1 and 2 June 2009, the application for leave to issue proceedings, against Mr Money’s decision to refuse Mr Knight’s application for an in cell computer that he made in July 2008 and renewed in December 2008 and was rejected by the letter of 2 March 2009 referred to above, was heard and determined.[32] Byrne J refused Mr Knight’s application for leave to commence the proceeding.[33]
[32]Exhibit JK 17.
[33]Knight v Money [2009] VSC 242.

On 12 August 2009, Mr Knight submitted a revised application for access to a personal in cell computer on legal, education/training and exceptional circumstances grounds. This application was supported by the manager of the PPP Education Centre and by his legal advisors at Darebin Community Legal Centre.

His application referred to two Supreme Court matters Mr Knight was involved in. Mr Knight said that most of the case materials for these proceedings were contained on floppy disk and CD-Rom. He said that if they were provided in hard copy they would be too voluminous. Mr Knight set out the times he had access to the computer in the library and the difficulty those times placed on him to adequately deal with his cases. He said he needed access to prepare court documents and to prepare for court, in a timely manner and in a way which did not affect his educational studies.[34]
[34]Exhibit JK 26; Exhibit JK 6; Affidavit of Knight of 4 March 2010 [46]; Affidavit of Knight of 16 March 2010 [16].

The application of 12 August 2009 is one of the applications referred to in the proposed proceeding for which Mr Knight seeks leave.

On 26 August 2009, Mr Knight was told by the Sentencing Management Unit (“SMU”) General Manager, Trevor Pickering, that his application of 12 August would be determined by the Major Offenders Review Panel (“MORP”) on 31 August 2009.

On 22 October 2009, Mr Knight’s annual review was conducted at PPP. This review was chaired by Mr Money. Mr Knight says he was informed by Mr Money that he was unaware of Mr Knight having submitted any new application for access to a personal in cell computer. Mr Money informed Mr Knight that the panel had yet to receive any application for an in cell computer.[35]
[35]Exhibit JK 10.

On 28 October 2009, Mr Knight wrote to Mr Hastings and complained about the conduct and outcome of his annual review.[36] Mr Knight complained, inter alia, about the processing of his application for access to a personal in cell computer submitted on 12 August 2009. [37]
[36]Exhibit JK 7.
[37]Exhibit JK 26.

On 20 November 2009, Acting Director PPP, Mr Paul Spadano, advised Mr Money in writing that having reviewed Mr Knight’s application and the rationale provided by Mr Knight regarding access to prison computers that he did not support Mr Knight’s application for an in cell computer.[38]
[38]Exhibit JK 10.

On 24 November 2009, Mr Knight received a letter dated 19 November 2009 from Rod Wise. He said : “As indicated in your annual review on 22 October 2009, it is not helpful to continually submit applications without demonstration of a change of circumstances”. He said any application would be considered in the normal process.[39]
[39]Exhibit JK 8; Affidavit of Knight of 4 March 2010 [50] ; Affidavit of Knight of 16 March 2010 [17].

On 30 November 2009 , Mr Knight wrote a letter to Mr Wise in response to his letter dated 19 November 2009.[40]
[40]Exhibit JK 9; Affidavit of Knight of 4 March 2010 [51]; Affidavit of Knight of 16 March 2010 [18].

Mr Knight says the application for access to a personal in cell computer he submitted on, inter alia, legal grounds on 12 August 2009 was rejected by Mr Roach, the second defendant, in late November 2009, and rejected by Mr Hastings on 4 December 2009.[41]
[41]Exhibit JK 10; Affidavit of Knight of 4 March 2010 [54] ; Affidavit of Knight of 16 March 2010 [19].

On 3 December 2009, Mr Knight submitted a complaint to the Ombudsman regarding, inter alia, the failure by Corrections Victoria to process his latest computer application.

On 8 December 2009, Mr Knight received a letter of 4 December 2009 from Mr Money in response to Mr Knight’s application for an in cell computer of 12 August 2009 that was raised at his annual review held with Mr Money on 26 October 2009. The letter dealt with the adequacy of Mr Knight’s access to a computer. Mr Money said as follows:

Dear Mr Knight
I write to you in reference to the recent discussions held at your Annual Review at Port Phillip Prison on 26 October 2009 regarding the status of your most recent computer application submitted by yourself around August 2009.
As discussed with you at this time, the panel had yet to receive any application and the matter was followed through with the management of Port Phillip Prison.
On 20 November 2009, I was advised in writing, from the A/Director Port Phillip Prison, Mr Paul Spadano, that having reviewed your application and the rationale provided by yourself regarding access to prison computers that he did not support your application for an in cell computer. Mr Spadano has further stated that he was satisfied that the times allocated for prisoners that wish to utilise the prison computers was adequate. He has informed that adequate access to the prisoners computers are available in the prisons library and further you may also make use of the computers based in the TAFE building which are made available to assist with study commitments.
Given all circumstances, I am not satisfied there is any significant change to circumstances and my previous decision not to approve an in cell computer remains.
Yours sincerely

On 8 December 2009, Mr Knight submitted an application for access to a personal in cell computer on legal grounds to Mr Roach. Mr Knight says this application was rejected by Mr Roach that day.[42]
[42]Affidavit of Knight of 16 March 2010 [20].

On 8 December 2009, Mr Knight submitted a Prisoner Request Form to PPP management for the loan of a prison desktop computer for, inter alia, “case preparation in relation to outstanding legal matters”.[43] This request was rejected by PSM1 Bill McLeod at the direction of Mr Roach on 9 December 2009 on the ground that he could “use the computers in the programs” area (that is, the PPP Education Centre & Library).[44]
[43]Exhibit JK 27.
[44]See notation on application Exhibit JK 27; Affidavit of Knight of 16 March 2010 [21].

On 8 December 2009, Mr Knight submitted a further Prisoner Request Form to PPP management for authorization to attend the PPP Library during all library sessions for both mainstream and protection prisoners, Monday to Friday.[45] This request was rejected by PSM1 McLeod at the direction of Mr Roach on 10 December 2009. Approval was given for access during mainstream sessions only on 10 December 2009.[46]
[45]Exhibit JK 28; Affidavit of Knight of 16 March 2010 [22].
[46]Exhibit JK 28.

On 17 December 2009, Mr Knight instituted these proceedings by issuing the originating motion supported by his affidavit of 17 December 2009.

On 28 December 2009, Mr Knight wrote to Mr Hastings regarding his computer applications submitted on 12 August 2009 that had been denied by Mr Money in his letter of 4 December 2009. Mr Knight also referred to his Prisoner Computer Request on legal grounds submitted on 8 December 2009.[47] The letter attached a list of five matters that Mr Knight was involved in: four in the Supreme Court and one in VCAT. Mr Knight said:

Given that I also need access to a personal in cell computer in order to pursue my Bachelor of General Studies course through Open University Australia, I ask that you review Assistant Commissioner Money’s decision to deny my application submitted on 12 August 2009 or, alternatively, that you approve my application submitted on 8 December 2009.[48]

[47]Exhibit JK 11.

[48]Ibid.

He says this letter was not responded to.[49]
[49]Affidavit of Knight of 4 March 2010 [58].

On 28 December 2009, Mr Knight also wrote to Mr Roach regarding his computer applications submitted on 12 August 2009 and 8 December 2009.[50] Mr Knight again referred to the five separate Supreme Court and VCAT matters he was involved in. Mr Knight complained that “the time available at the PPP library is not sufficient for me to meet my legal, educational and personal commitments” (his emphasis). He says this letter was not responded to.[51]
[50]Exhibit JK 12.
[51]Affidavit of Knight of 4 March 2010 [59].

On 18 January 2010, Mr Knight wrote to Mr Roach regarding his computer applications submitted on 12 August 2009 and 8 December 2009.[52] In his letter, Mr Knight said:

I again ask that [you] reconsider my application for access to a personal in cell computer. In relation to my legal commitments (as per my list of Outstanding Legal Matters), please be advised that I intend to seek a court order directing that I be given access to a personal in cell computer. It is simply no possible to draft the necessary court documents within the prescribed time limits without access to a personal in cell computer.

[52]Exhibit JK 13; Affidavit of Knight of 4 March 2010 [60].

Mr Knight also referred to his educational and other responsibilities that required access to a computer. He asked Mr Roach why PPP management no longer support his application for access to a personal in cell computer. Mr Knight says this letter was not responded to.[53]
[53]Affidavit of Knight of 4 March 2010 [60].

On 7 February 2010, Mr Knight wrote to Mr Roach regarding his computer applications and the non-delivery of a package of legal documents he had sent to the Supreme Court.[54] He complained the package was held in the Property Store at PPP. Mr Knight says this letter was not responded to.[55]
[54]Exhibit JK 14; Affidavit of Knight of 4 March 2010 [61].
[55]Affidavit of Knight of 4 March 2010 [61].

On 17 February 2010, Mr Knight appeared before the MORP at PPP for his quarterly sentence management review. He says this hearing was chaired by Mr Money and the General Manager of the MOU, Ms Vicki Ryan. During this hearing, he says he again raised the issue of his application for access to a personal in cell computer. He says Mr Money and Ms Ryan responded that they were not prepared to discuss the matter as it was now the subject of legal proceedings (i.e. the instant proceedings).[56]
[56]Affidavit of Knight of 4 March 2010 [62].

On 1 March 2010, Mr Knight commenced the fourth subject in his OUA Bachelor of Liberal Studies course, BLW Business Law. He says the entire study materials for this course are contained on a CD-Rom.[57]
[57]Exhibit JK 29; Affidavit of Knight of 16 March 2010 [23].

MR KNIGHT’S ACCESS TO COMPUTERS

Mr Knight currently has access to computers at the PPP Education Centre four days a week (Monday-Thursday). He is currently enrolled in two TAFE courses at the Education Centre (Information Technology & Horticulture). Mr Knight enrolled in these courses on 20 June 2007 (Information Technology) and 26 July 2007 (Horticulture). [58]
[58]Exhibit JK 32; Affidavit of Knight of 4 March 2010 [65].

Mr Knight also enrolled in a Bachelor of General Studies course through Open Universities Australia (“OUA”) on 14 May 2009. His enrolment with OUA is continuous (i.e. year-round) and he is currently completing a minor in commercial law. Each subject involves the completion of written (printed) assignments and an examination.[59]
[59]Affidavit of Knight of 4 March 2010 [66].

Mr Knight says that on 4 June 2009, he was accepted by Griffith University into their Bachelor of General Studies course.[60]
[60]Exhibit JK 34; Affidavit of Knight of 23 March 2010 [10].

The computers located in the PPP Education Centre are operated by the Kangan Institute (formerly the Kangan Batman TAFE). Prisoners are only permitted to use the computers in the PPP Education Centre during class times and only for Kangan Institute courses. Prisoners wishing to use a computer for education courses other than those offered by Kangan Institute, including those offered by OUA, or for personal purposes must use the computers provided in the PPP Library.[61]
[61]Affidavit of Knight of 4 March 2010 [67].

Mr Knight is currently permitted to access computers for the preparation of legal cases, the drafting of OUA subject assignments, or for other personal purposes at the PPP Library.[62] The library consists of two small adjoining rooms. One room contains book shelves and the prisoner librarian’s desk. The adjoining room contains book shelves, a table of magazines and newspapers, and 5 desktop computers. There is no limit on the number of prisoners that can attend the library at any one time, and there is no requirement that prisoners attending the library be quiet. The library is not open on weekends, on public holidays, or when the Education Centre is closed. The library/Education Centre is also sometimes closed due to the lack of prison staff. The PPP Library and Education Centre have to service an average daily total muster of around 780 prisoners.[63]
[62]Affidavit of Knight of 17 December 2009 [20].
[63]Affidavit of Knight of 4 March 2010 [68].

Each prisoner accommodation unit at PPP is allocated 1½ hour sessions at the PPP Library. Mr Knight is able to access computers at the PPP Library during library sessions allocated to his unit. The library sessions allocated to his accommodation unit, Waaksembyd Unit, are the following: Monday 1500-1630hrs, every second Wednesday 1300-1630hrs, Thursday 1500-1630hrs. Of the three allocated sessions, only two do not clash with his education course classes: a session every Monday afternoon and a session ever second Wednesday afternoon. His total library allocation that does not clash with education courses is therefore 1½ to 3 hours per week.[64]
[64]Affidavit of Knight of 4 March 2010 [69].

Mr Knight is currently enrolled in the OUA subject BLW15 Contract Law through Curtin University of Technology. His first assignment for this subject was a 1,500 word essay due on 25 December 2009. By 23 December 2009 – the last day the PPP Education Centre was open in 2009 – he had completed a handwritten draft of this essay and had commenced retyping it using a computer at the PPP Library. Mr Knight says that he had insufficient time to complete typing the assignment so he arranged for the Manager of the Education Centre, Mr Adrian Carrin, to send an e-mail to Curtin University informing them of his inability to post or e-mail his assignment by the due date.[65]
[65]Affidavit of Knight of 4 March 2010 [70].

On 30 December 2009, the PPP Library re-opened for the day and he was able to complete re-drafting his assignment and post it. On 13 January 2010, he was handed an e-mail from his lecturer at Curtin University, Ms Anna Bunn, informing him that his assignment had incurred a penalty for late submission and had, therefore, resulted in a fail mark.[66]
[66]Exhibit JK 15; Affidavit of Knight of 4 March 2010 [70].

Since 12 June 2008, Mr Knight has taken the minutes of the monthly PPP Prisoners’ Representatives Committee meetings. Each meeting is 1 to 1½ hours in duration. These minutes are required to be transcribed onto a 3.5” computer floppy disk and handed to a PSM for checking and printing. As Mr Knight does not have access to a personal in cell computer, he says he must use the computers at the PPP Library to draft these minutes.[67]
[67]Affidavit of Knight of 4 March 2010 [71] and 17 December 2009 [22].

Mr Knight says he does not have access to any computer during the period between Friday and Sunday. He says prisoners at PPP are locked in their cells during from 1940 to 0810hrs, a total of 87½ hours per week.[68]
[68]Affidavit of Knight of 4 March 2010 [72]-[73].

Mr Knight says that of the 8 prisoners at PPP who have access to a personal in cell computer, 6 were approved access on legal grounds. He says that all 6 are represented in their respective legal matters.[69]
[69]Affidavit of Knight of 4 March 2010 [74].

Mr Knight says that all prisoners in PPP, except those in the Borrowdale and Charlotte “management” units, have access to the PPP Library and Education Centre. Prisoners in Penhyn Unit and Marlborough Unit also have access to unit computers (two laptop computers in Penhyn Unit and a laptop computer and a desktop computer in Marlborough Unit).[70]
[70]Affidavit of Knight of 4 March 2010 [75].

Mr Knight says that of the approximately 300 prisoners who have submitted applications for access to a personal in cell computer, all – apart from him – have had their applications approved by Corrections Victoria. He says he knows of no application for access to a personal in cell computer on legal grounds that has been rejected by Corrections Victoria, except for his.[71]
[71]Affidavit of Knight of 4 March 2010 [76]-[77].

Mr Knight says his applications for access to a personal in cell computer on legal grounds have been supported by his legal advisors at Darebin Community Legal Centre.[72]
[72]Exhibit JK 6 , documents 7-8.

As indicated above, Mr Knight says all applications by prisoners for access to a personal in cell computer on legal grounds, apart from his, have been approved by Corrections Victoria. He says these approvals include applications made in relation to outstanding civil law matters. He says one prisoner, Greg Brazel (CRN 1961), was given approval for a personal in cell computer to prepare a civil matter where he was represented, and where the defendant was Corrections Victoria.[73]
[73]Affidavit of Knight of 4 March 2010 [79].

Mr Knight contends that the reasons advanced by Corrections Victoria for denying his previous applications for access to a personal in cell computer apply equally, or more so, in relation to those prisoners that have had their applications approved.[74]
[74]Affidavit of Knight of 4 March 2010 [80].

Mr Knight says that as he does not have access to a personal in cell computer, he is forced to draft nearly all necessary court documents – including affidavits he prepared for this application – twice: first by hand in his cell then, second, by computer in the PPP Library. He says that any errors detected in his printed court documents cannot be rectified until his next allocated library session, involving a delay of between 1 to 3 days. He says that the written response to any court documents served on him by the defendants/respondents is likewise delayed until his next allocated library session. He says that he finds that he does not have sufficient access to a computer to properly prepare for the legal proceedings he is prosecuting.[75]
[75]Affidavit of Knight of 4 March 2010 [81].

COMPUTER ACCOUNT

Mr Knight says that as result of his various educational, legal and personal commitments, his 150MB computer account has now run out of available space.[76] He says that on 17 March 2010 he requested that his computer account be expanded from 150MB to 200MB due to the amount of educational, legal and personal computer files he has (and due to the fact that he does not have his own computer on which to store them).[77]
[76]Affidavit of Knight of 23 March 2010 [11].
[77]Affidavit of Knight of 23 March 2010 [12].

MR KNIGHT’S MEDICAL CONDITIONS

Mr Knight deposes that he contracted Crohn’s disease in March 1995 and his condition was diagnosed at St Vincent’s Hospital on 6 March 1996. He says his use of the computers in the PPP library is detrimentally affected by his frequent need to visit the toilet.[78]
[78]Affidavit of Knight of 4 March 2010 [82].

Mr Knight says he was diagnosed with failing eyesight at PPP’s St John’s Hospital on 9 November 2009 and prescribed reading glasses. He says that the size of any text on a computer screen that he has difficulty reading can be increased by the use of the zoom function.[79]
[79]Affidavit of Knight of 4 March 2010 [83].

MR KNIGHT’S PREVIOUS APPLICATION

Mr Knight has previously sought leave to commence proceedings against the Acting Assistant Manager of PPP arising out of his rejection of an application made by Mr Knight for permission to have a personal in-cell computer. That application was refused in Knight v Money[80] by Byrne J. His Honour held that the application was bound to fail as the decision of the defendant did not involve dealing with a prisoner’s legal right or the Commissioner’s legal duty to have or to permit prisoners to purchase a computer or to have a computer in their cell.[81]
[80][2009] VSC 242.
[81]Ibid [19].

Byrne J also made observations on the application of the eligibility criteria contained in the Director’s Instructions No 4.14 issued to the Manager of PPP which deals with the process under which a prisoner may purchase a computer and keep it in their cell. He held that the Commissioner was entitled to conclude that the first criterion, that the computer is required for the preparation of his case in an outstanding legal matter, was without substance. He observed there were in fact no legal matters on foot, whether criminal or civil, in which Mr Knight was a party.

This application is different to the application in Knight v Money. The application in Knight v Money concerned whether the PPP authorities had properly decided in accordance with relevant guidelines whether or not Mr Knight should be permitted to have an in cell computer. In this application Mr Knight seeks leave to commence proceedings to compel the relevant authorities to accede to his application for an in cell computer so that his access to the court to hear and determine the substantive applications will not be impeded.

CONCLUSION OF MR KNIGHT

Mr Knight deposes that due to the circumstances outlined above, without access to an in cell personal computer he is physically unable to draft the necessary court documents in a proper and timely manner, or within the time frames prescribed by the relevant court and tribunal rules.[82]
[82]Affidavit of Knight of 14 January 2010 [39].

MR KNIGHT’S CASE

As I understand his submissions, it is the defendants’ failure to approve his applications and allow him to have an in cell personal computer that he alleges is infringing his common law right to have unimpeded access to the courts during the preparation of, the hearing of and determination of the three substantive applications.

In his oral submissions, Mr Knight made it clear that his sole complaint is based on the refusal of the defendants to allow him to have an in cell computer which he says constitutes an infringement of his common law right to have unimpeded access to the court in respect of the three substantive proceedings.[83] Mr Knight does have other proceedings before the court but made it clear that he is only seeking leave to institute the computer proceedings on the ground that his common law right to have unimpeded access in relation to the three substantive proceedings will be infringed without access to an in cell computer.
[83]Transcript 10 March 2010, p 17 lines 15-20 and p19 line 19 – p 20 line 22.

Although Mr Hastings has referred to the relief sought in the computer proceeding as an interlocutory injunction,[84] the relief sought is final. On the other hand the access to the in cell computer is limited in time to the hearing and determination of the three substantive applications.
[84]Reply submissions [1].

Mr Hastings in his written submissions submits that although some of the grounds of Mr Knight’s originating motion and a large part of his submissions are directed to the correctness of the decision to refuse Mr Knight’s application for an in cell computer, judicial review is not relevant to Mr Knight’s application before me.[85] I agree with this contention.
[85]Ibid [3].

Mr Knight’s application for an order in the nature of a mandatory injunction requiring the defendants to approve his applications for access to a personal in cell computer is based on four propositions:

(a) First, that every citizen has the common law right of unimpeded access to the courts.

(b) Second, that prisoners retain their common law right of unimpeded access to the courts and this is recognised in s 47(2) of the Corrections Act 1986.

(c) Third, that the prison authorities recognise that a prisoner’s common law right of unimpeded access to the courts involves access to a personal in cell computer in order to facilitate case preparation.

(d) Fourth, that it is for the courts, not the prison authorities, to determine what constitutes unimpeded access to the courts.[86]

[86]Mr Knight’s written submissions of 30 March 2010 (“Knight’s submissions”) [29].

Mr Hastings accepts that the first, second and fourth propositions are uncontroversial when expressed at the level of generality that they are given in Mr Knight’s submissions.[87] He contends, however, that whether or not Mr Knight’s third proposition is correct (and he submits that it is not), is irrelevant.
[87]Mr Hastings’ reply submissions (“Hastings’ reply submissions”) [6].

FIRST PROPOSITION: UNIMPEDED ACCESS TO THE COURTS

Mr Knight submits that the High Court of Australia has recognised the right of unimpeded access to the courts in Coco v R[88] where Mason CJ, Brennan, Gaudron and McHugh JJ cited with approval Lord Bridge of Harwich in Raymond v Honey[89] where His Lordship stated that: “a citizen’s right to unimpeded access to the courts can only be taken away by express enactment”.[90]
[88](1993) 179 CLR 427 at 436-437.
[89][1983] 1 AC 1.
[90]Ibid at 14; see also Bennett v Bennett (2001) 167 FLR 137 at [44].

Raymond v Honey[91] concerned a prisoner being denied access to the courts. In that case, the prison authorities had prevented the prisoner from instituting proceedings in the courts seeking to have the prison governor found guilty of contempt of court for previously preventing the prisoner from writing a letter to his solicitor. Lord Wilberforce stated two pertinent principles:[92]

First, any act done which is calculated to obstruct or interfere with the due course of justice, or the lawful process of the courts, is a contempt of court…
Secondly, under English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication…
[91][1983] 1 AC 1.
[92]Ibid at 10.

SECOND PROPOSITION: PRISONER’S RETAIN COMMON LAW RIGHTS

Mr Knight relies on s 47 of the Corrections Act 1986 in support of his second proposition that prisoners retain their common law right of unimpeded access to the courts. Section 47 provides:

47       Prisoners rights
(1)     Every prisoner has the following rights—
(a)     if not ordinarily engaged in outdoor work, the right to be in the open air for at least an hour each day, if the weather permits;
(b)     the right to be provided with food that is adequate to maintain the health and well-being of the prisoner;
(c)     the right to be provided with special dietary food where the Governor is satisfied that such food is necessary for medical reasons or on account of the prisoner's religious beliefs or because the prisoner is a vegetarian;
(d)     the right to be provided with clothing that is suitable for the climate and for any work which the prisoner is required to do and adequate to maintain the health of the prisoner;
(e)     if not serving a sentence of imprisonment, the right to wear suitable clothing owned by the prisoner;
(f)      the right to have access to reasonable medical care and treatment necessary for the preservation of health including, with the approval of the principal medical officer but at the prisoner's own expense, a private registered medical practitioner physiotherapist or chiropractor chosen by the prisoner;
(g)     if intellectually disabled or mentally ill, the right to have reasonable access within the prison or, with the Governor's approval outside a prison to such special care and treatment as the medical officer considers necessary or desirable in the circumstances;
(h)     the right to have access to reasonable dental treatment necessary for the preservation of dental health;
(i)      the right to practise a religion of the prisoner's choice and, if consistent with prison security and good prison management to join with other prisoners in practising that religion and to possess such articles as are necessary for the practice of that religion;
(j)      the right to make complaints concerning prison management to the Minister, the Secretary, the Commissioner, the Governor, an official visitor, the Ombudsman, the Health Services Commissioner and the Human Rights Commissioner;
(k)     the right to receive at least one visit which is to last at least half an hour in each week under section 37;
(l)      the right to be classified under a classification system established in accordance with the regulations as soon as possible after being sentenced and to have that classification reviewed annually;
(m) subject to sections 47A and 47B, the right to send letters to, and receive letters from, the following people without those letters being opened by prison staff—
(i)        the Minister, the Secretary, the Commissioner or an official visitor;
(ii)       a member of Parliament;
(iii)a lawyer representing the prisoner, or from whom the prisoner is seeking legal advice;

(iv)     the Ombudsman;
(v)      the Health Services Commissioner;
(vi)     the Human Rights Commissioner;
(vii)any person authorised to act on behalf of a person listed in subparagraph (iv), (v) or (vi);

(n)     subject to section 47D, the right to send and receive other letters uncensored by prison staff;
(o)     the right to take part in educational programmes in the prison.
(2)     A prisoner's rights under this section are additional to, and do not affect any other rights which a prisoner has under an Act other than this Act or at common law.
(3) Subsection (1)(m) does not prevent the opening of letters in accordance with section 28(3) of the Ombudsman Act 1973 or section 86L(7) of the Police Regulation Act 1958.

Mr Knight submits that s 47(2) of the Corrections Act 1986 expressly preserves his common law right of unimpeded access to the courts.

THE NATURE OF THE RIGHT OF UNIMPEDED ACCESS

Mr Knight contends that the right to unimpeded access goes beyond preventing physical access.[93] He submits that the right to unimpeded access is infringed if the citizen, including a prisoner, is denied the means to properly exercise that right. In support of this proposition he refers to and relies on Rich v Groningen.[94]
[93]NAFC v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 126 FCR 99.
[94](1997) 95 A Crim R 272, at 286-288.

In Rich v Groningen,[95] a prisoner complained prison authorities removed from his possession documents he needed to conduct a criminal appeal. These documents included transcripts, legal texts, computer diskettes, correspondence, notes and cases. As it was, these were returned to him before the case was decided. Nevertheless, the prisoner sought a declaration that he was entitled to possess those documents. Gillard J declined to make the declaration. He did, however, express his view about the rights of a prisoner to not have his access to the courts infringed.
[95]Ibid.

Gillard J confirmed that a prisoner has the same civil rights and privileges as any other citizen, which have not been taken away expressly or by necessary implication by legislation. Gillard J cited Raymond v Honey,[96] STAATS v United States of America[97] and Coco v R.[98] As to the nature of the right of unimpeded access, he said:

I have no doubt that the plaintiff as a prisoner enjoys the right of every citizen in this state to unimpeded access to the courts, subject to the provisions of any legislation in this state which applies to him. There is no suggestion the plaintiff will not be able to exercise that right to attend at court on the hearing of his appeal and present his case. What he does submit is that by denying possession of his appeal documents the authorities could interfere with his right to access to the court; he says it has happened in the past.
In my opinion, the authorities could infringe his right to access to the court by making it impossible for him to present his case by taking away his appeal documents. This could, in certain circumstances, be as effective as physically stopping him going to court. To justify interference in that way the legislation would have to expressly or impliedly and in clear terms give the authorities the power to interfere with his property in such a way as to hinder or interfere with this basic right. That is not to say that legislation could not clearly give the authorities such power. In R v Secretary of State for the Home Department ex parte Wynne (1993) 1 WLR 115, an Act required a prisoner who wished to attend court to make application to the authorities and pay the cost of attending court. The case provoked much argument (in the Court of Appeal) but it was recognized that the Legislature could so provide even though it interfered with the right of access to the courts.[99]

[96][1983] 1 AC 1.

[97](1992) 66 ALJR 793 per Deane J.

[98](1993) 179 CLR 427.

[99](1997) 95 A Crim R 272 at 287.

In Rich v Groningen,[100] the prisoner Rich asserted he had an absolute right to all of his appeal documents at any time in any place where he was in prison. The prison authorities submitted that he only had a right to limited property and Rich did not have a right to his appeal documents. The prison authorities relied on the Corrections Act 1986 and the obligations on the prison authorities concerning security, search and seizure which they asserted cut across the prisoner’s rights. The prison authorities relied on s 47 of the Act and pointed out that there was no provision covering any rights to property save for s 47(1)(d) which gives a right to clothing provided by the authorities.
[100](1997) 95 A Crim R 272.

In response to these arguments, Gillard J held that Rich did have an unimpeded right to the courts and insofar as it is necessary for him to have access to his appeal documents to properly exercise that right, he is entitled to have reasonable access. He said:

I do not accept the contention of the plaintiff that he has an absolute right to all legal documents being in his possession at all times wherever he may be and irrespective of quantity. There are, first of all, physical constraints because of the size of the cell. The quantity may be so great it cannot be physically accommodated. There has to be a limit of what property can be held in a cell. Further, the quantity may be so great there may be a security and/or fire risk. Further, a prisoner cannot expect to have unlimited access to all his legal documents if they cannot be located in his cell. He would have to organize his preparation in such a way that he can have in his possession at any one time the documents that he needs for the task in hand.

On the other hand, I do not accept the submission of Mr Shepherd that the plaintiff has no rights to his appeal documents and that what he is given is merely a permissive right of possession. He does have an unimpeded right to the courts and in so far as it is necessary for him to have access to his appeal documents properly to exercise that right, he is entitled to have reasonable access. If the quantity is so great that all cannot be located in his cell, then the property should be housed in a place where he has access upon reasonable notice. I reiterate, the plaintiff has to organize his preparation to fit in with the prison officers' duties, but by the same token the prison officers should accord him ease of access and not place any obstacles in his way. In stating these rights and obligations they would be subject to security considerations reasonably and bona fide considered and any overriding power found in the legislation. The Act, regulations and Director's Instructions make it clear that the decision to permit a prisoner to possess property in a prison is a question of discretion.
In my opinion in exercising the discretion it is a relevant and important factor to be considered that a prisoner needs his legal documents to enable him to exercise his right to present his case in court. In my view the decision has to take into account the right and accord it considerable weight, balancing with it the other factors, including security.[101]

[101]Ibid at 288-298.

Mr Knight points out that in the case of Rich he already had access to a personal in cell computer. His complaints dealt with a retrieval disc, access to his appeal documents within his cell, visits by lawyers and a number of related matters.

Mr Knight also refers to and relies on NAFC v Minister for Immigration and Multicultural and Indigenous Affairs[102] where Beaumont J of the Federal Court of Australia considered the meaning and operation of s 256 of the Migration Act 1958 (Cth) ("the Act"), which relevantly provided as follows:

256 Where a person is in immigration detention under this Act, the person responsible for his ... detention shall, at the request of the [detainee], ... afford to him ... all reasonable facilities ... for obtaining legal advice or taking legal proceedings in relation to his ... detention.

[102][2002] FCA 1587; (2002) 126 FCR 99.

The applicant contended that he had an enforceable right or entitlement to be afforded all reasonable facilities for obtaining legal advice or taking legal proceedings pursuant to s 256 of the Act and this right was being infringed by the Minister’s conduct in removing the applicant from Sydney, where his lawyer was, to the Woomera Detention Centre.

In considering the nature of the statutory right, Beaumont J set out the applicant’s contentions concerning the common law right of a person’s unimpeded access to the courts. This right was said to include the right of access to the person’s legal representative. He quoted the submission for the applicant as follows:

The common law right of a detained person to have access to his or her legal representative is represented by the decision of the UK Court of Appeal in R v Secretary of State for the Home Department; Ex parte Leech [1994] QB 198 at 210:
Equally clearly established is the important principle that a prisoner's unimpeded right of access to a solicitor for the purpose of receiving advice and assistance in connection with the possible institution of civil proceedings in the courts form an inseparable part of the right of access to the courts themselves. (Emphasis added)

Mr Knight submits that these authorities make clear that the right of unimpeded access encompasses more than simply physically stopping someone from entering the court’s precincts.

THIRD PROPOSITION: PRISON AUTHORITIES’ RECOGNITION

Mr Knight contends that the prison authorities recognize that a prisoner’s common law right of unimpeded access to the courts involves access to a personal in cell computer in order to facilitate case preparation and the conduct of proceedings.

He contends that the statutory framework governing prisons and prisoners in Victoria consists of:

(a) Corrections Act 1986;

(b) Corrections Regulations 2009; and

(c) the Commissioner’s Requirements,

(i) Director’s Instructions (in government prisons); and

(ii) Operational Instructions (in private prisons).

He contends that the policy and administrative framework consists of:

(a) Department of Justice Policy on personal computers in prison;

(b) Commissioner’s Requirement Prisoner Property: Prisoner Computers (May 2009) (for all prisons); and

(c) Director’s Instruction No 4.14, Prisoner Computers (issued 15 May 2009) (for government prisons only).

Mr Knight refers to the provisions of the Commissioner’s Requirements: Prison Property – Prisoner Computers (May 2009)[103] quoted above. In particular the Requirements state that a prisoner is eligible to apply for an in cell computer under three criteria, one of which is legal. That relevantly provides:

4.1.1 Legal The prisoner is unconvicted or has an outstanding legal matter or outstanding appeal and requires a computer to assist in the preparation of their case/defence.
….
For all of the above [including legal] an application for an in cell computer must be considered on the basis that an in cell computer is necessary. Necessary is not to be taken to mean desirable – refer to Attachment 3 Prisoner in Cell Computer Criteria.

[103]Exhibit JK 5.

Attachment 3 relevantly provides:

1 It is noted that, ‘necessary’ is not to be taken to mean ‘desirable.’
2 An in cell computer might be necessary because –
For applications on legal grounds
(a) depositional or other material critical to the prisoner’s outstanding trial(s) might only be available in CD, CD-ROM, or DVD form, or would be too voluminous if provided in hard copy;
(b) the material on those discs might be distressing if viewed by other prisoners in a communal area, or may impact on the prisoner’s safety, or constitute a breach of privacy if viewed by others; or
(c) the amount of time required on the computer to prepare adequately for trial would unreasonably inhibit other prisoners’ access to the computer
Note: ‘trial’ in the above sections relates to criminal trials only. Permission to access an in cell computer solely in order to work on civil matters will not ordinarily be granted.

Mr Knight contends that the Requirements make no distinction between a criminal and civil proceeding. He argues that such a distinction would be impermissible given the common law right of unimpeded access to the courts exists irrespective of the type of proceedings.[104]
[104]Knight submissions [42].

Mr Knight says that the evidence of his need for access to a personal in cell computer for legal matters is contained in the letters from Darebin CLC which he says were accepted by the PPP Director in July 2008 and again in January 2009.[105]
[105]Exhibit JK 6.

Mr Knight asserts that his right of access to the courts is being impeded by the prison authorities’ refusal to permit him the use of an in cell computer. Further, he says the litigation he wishes to purse in the courts is against the prison authorities. As indicated above, his proposed substantive applications all involve the prison authorities as defendants.

He contends that the prison authorities are deliberately impeding his access to the in cell computer to impede his court proceedings against themselves. Mr Knight submits that in no other case that he knows of, even any foreseeable case, “would one party to the litigation have the power to determine the access to relevant facilities by the other party to the litigation”.[106]
[106]Transcript March 17.

Mr Knight contends that in addition to the drafting of originating processes and other court and tribunal documents, access to a personal in cell computer is needed by him in order to: review transcripts, relevant statutes and authorities; compile briefs to counsel and carry a whole host of similar functions. He also refers to the need to keep copies and the limits that are imposed on him in keeping hard copies in his cell.

Mr Knight also relies on sections 24 and 25 of the Charter of Human Rights & Responsibilities Act 2006.

FOURTH PROPOSITION

Mr Knight submits that it is for the courts, not the prison authorities, to determine what constitutes unimpeded access to the courts. This proposition is not disputed by Mr Hastings.

Mr Knight relies on NAFC v Minister for Immigration and Multicultural and Indigenous Affairs[107] in support of his fourth proposition that it is within the inherent jurisdiction of the court to grant the relief sought. In the NAFC case, Beaumont J considered an earlier decision[108] where Sheppard J had ordered that immigrant applicants be brought to Sydney from Point Hedland so that they could present their case. Sheppard J referred to his powers under O 10 of the Federal Court Rules 1979 or under s 256 of the Act. Beaumont J considered that Sheppard J had approached the question as a case management issue.
[107][2002] FCA 1587; (2002) 126 FCR 99 (‘NAFC case’).
[108]Le v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 27.

FURTHER CHALLENGES TO THE REFUSAL OF MR KNIGHT‘S APPLICATION FOR AN IN CELL COMPUTER

Mr Knight’s written submissions went further than his oral submissions. In his written submissions he contends that the discretionary power to allow prisoners access to personal in cell computers is amenable to judicial review.[109] He also contends that he has a “legitimate expectation” that he will be given access to a personal in cell computer provided he meets the eligibility criteria outlined in the first defendant’s policy and according to the regular practice of the defendants.[110]
[109]Knight submissions [61]-[62].
[110]Knight submissions [64]-[75].

Mr Knight’s submissions also assert that the defendants were bound to take into account relevant considerations and were not entitled to take into account irrelevant considerations.[111] Mr Knight says the decisions were made for an improper purpose, namely to hinder his preparation and conduct of the legal proceedings.[112]
[111]Knight submissions [76]-[80].
[112]Knight submissions [81]-[82].

Mr Knight submits that the defendants’ decisions were bound to be within reason (based on some probative evidence), justifiable (the reasons had to be at least persuasive, if not compelling) or proper (the reasons had to be reasonable within the “Wednesbury” test).[113]
[113]Knight submissions {83]-[89].

Mr Knight contends that the defendants’ decisions are attended by apprehended bias in that a fair minded and reasonably well informed observer would conclude that the decision maker did not approach the issue with an open mind.[114] Mr Knight also raises an issue of jurisdictional error.[115]
[114]Knight submissions [90]-[91].
[115]Knight submissions [92].

Mr Hastings contends that the further challenges are in the nature of judicial review of the decision. He contends that only ground (i) of paragraph 3(a) of the originating motion is relevant to Mr Knight’s invocation of the court’s inherent jurisdiction and s 47(2) of the Corrections Act. Mr Hastings submits that Mr Knight has expressly limited this application (for the time being) to seeking leave to bring a proceeding in the court’s inherent jurisdiction for interlocutory injunctive relief to allow him an in cell computer and a declaration for the purpose of preparing and presenting the substantive proceedings.

Mr Knight concedes that he does not seek a merits review in the application I am considering.[116]
[116]Knight submissions [113].

UNIMPEDED ACCESS TO THE COURTS

Mr Knight submits that the importance of access to a personal in cell computer in preparing for a legal matter was recognized by the fact that the primary decision maker of the third and fourth applications on 4 July 2008 and 6 January 2009 approved the application.

Mr Knight also says that the defendants, by basing their decision to refuse him access to a personal in cell computer, inter alia, on the fact that Mr Knight was a declared vexatious litigant, recognized that by denying Mr Knight access to a personal in cell computer they were frustrating and impeding his preparation of court documents and the conduct of active legal proceedings.[117]
[117]Knight submissions [95].

DECLARATION

Mr Knight contends that it is within the court’s power to grant a declaration pursuant to s 36 of the Supreme Court Act 1986. He refers to Ainsworth v Criminal Justice Commission[118] as identifying the circumstances where the court may grant declaratory relief. There Mason CJ and Dawson, Toohey and Gaudron JJ had observed that it did not follow that, because mandamus and certiorari were inapplicable, the appellants must leave the Court without a remedy. In particular they said:

It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "(i)t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise."(37) Forster v. Jododex Aust. Pty. Ltd. (1972) 127 CLR 421, per Gibbs J. at p 437. However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions(38). See In re Judiciary and Navigation Acts (1921) 29 CLR 257. The person seeking relief must have "a real interest"(39) Forster (1972) 127 CLR, per Gibbs J. at p 437; Russian Commercial and Industrial Bank v. British Bank for Foreign Trade, Ltd. (1921) 2 AC 438, per Lord Dunedin at p 448. and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that (have) not occurred and might never happen"(40) University of New South Wales v. Moorhouse (1975) [1975] 133 CLR 1, per Gibbs J. at p 10. or if "the Court's declaration will produce no foreseeable consequences for the parties"(41). Gardner v. Dairy Industry Authority (N.S.W.) (1977) 52 ALJR 180, per Mason J. at p 188; see also per Aickin J. at p 189; 18 ALR 55 at pp 69, 71 respectively. [119]

[118](1992) 175 CLR 564 (‘Ainsworth’).

[119]Ibid at 581-582.

Mr Knight contends that the court ^.has inherent jurisdiction to grant whatever declaratory relief it deems appropriate in the circumstances. In Ainsworth, Brennan J stated that:

The making of a declaration and the terms in which, if made, it should be framed are in the court's discretion. As the Privy Council said in Ibeneweka v. Egbuna(66) (1964) 1 WLR 219, at 225:
"After all, it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration."

The circumstances that call for the making of a declaration are not present if there be no real controversy to be determined(67). Re Tooth & Co. Ltd. (1978) 31 FLR 314, at p 331. The characteristics of a controversy fit for determination by judicial declaration were stated by Viscount Dunedin in Russian Commercial and Industrial Bank v. British Bank for Foreign Trade, Ltd.(68): (1921) 2 AC 438, at p 448:
“The question must be a real and not a theoretical question;
the person raising it must have a real interest to raise
it; he must be able to secure a proper contradictor, that
is to say, some one presently existing who has a true
interest to oppose the declaration sought."

Those elements appear in the present case. [120]

[120]Ibid at 596.

Mr Knight refers to NAFC v Minister for Immigration & Multicultural & Indigenous Affairs[121] where the primary relief of an injunction seeking to restrain the minister from moving the refugee from Sydney to Woomera was refused but the court nevertheless made declarations as to the refugee’s entitlement to confer with his solicitor in Woomera.
[121](2002) 126 FCR 99.

Mr Knight contends that in this case:

(a)That the declaration sought is an appropriate relief against the defendants;[122]
[122] NAFC v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 126 FCR 99, at [111]-[112].
(b)That the relief sought is not directed towards a hypothetical, vague or uncertain question;

(c)       That Mr Knight has a real interest in raising it;
(d)      That there is a proper contradictor;
(e)       That the relief sought is directed to the determination of a legal controversy between the parties (namely, whether a prisoner's common law right of unimpeded access to the courts entails access to a personal "in cell" computer within the concept of "adequate time and facilities") in relation to existing circumstances; and
(f)That there will be foreseeable consequences for the parties.

Mr Knight further submits that if the declaratory relief sought is not appropriate declaratory relief, it is not fatal to the proceeding as the defect can be cured by refashioning the originating motion. Alternatively, the court in its inherent jurisdiction can grant whatever relief or remedy it deems appropriate in the circumstances.

OBJECTIVE TEST

Mr Knight concedes, however, that whether or not his access to the courts is being impeded is an objective test. I understand Mr Knight to be submitting that in relation to whether or not the prison authorities are intentionally refusing him permission to have a personal in cell computer to impede his access to the courts, the substantive issue is whether the refusal of the prison authorities to permit him the use of an in cell computer is in fact, on an objective basis, impeding his access to the courts.

Nevertheless, I would expect that the court may more easily conclude that the activities of the authorities were having that effect if the authorities intended their activities to have that effect.

CONTENTIONS OF MR HASTINGS

Mr Mitchell, counsel for the first defendant, submits that Mr Knight’s evidence was too broad and that no particulars of Mr Knight’s ability to access the court being materially impeded have been provided.

He contends that Mr Knight does have access to a computer to prepare court documents and in this application he has prepared the originating motion and two lengthy affidavits.

Mr Hastings also refers to and relies on Rich v Secretary to the Department of Justice[123] where Mandie J summarily dismissed a proceeding by the prisoner Rich who sought to compel the defendants to provide him with an in cell computer. Mandie J held that the plaintiff did not have an arguably enforceable right to access an in cell computer which existed independently of his common law right to a fair trial. I assume the common law right to a fair trial encompasses the common law right to unimpeded access to the courts. Mandie J held that access to an in cell personal computer was not a “privilege” within the Corrections Act 1986.
[123][2007] VSC 405.

Mr Hastings refers to Mandie J’s observation that insofar as the refusal to provide the plaintiff with an in cell computer infringed [Rich’s] common law right to a fair trial (and he did not decide whether it did) that was a matter for the trial judge. He said that, however, in the context of a criminal trial and in recognition of the principle that it is not for the civil courts to protect the rights of a defendant in the criminal proceedings, it was a matter for the courts in their criminal jurisdiction.[124]
[124]Ibid at [23]; Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317.

Mr Hastings also refers to and relies on Knight v Money[125] where Byrne J considered an application by Mr Knight to commence proceedings against the Acting Assistant Commissioner for Corrective Services. Byrne J considered the Commissioner’s Requirement No 03/2004 and the Director’s Instruction No 4.14 issued 1 January 2008 dealing with in cell personal computers as referred to by Mr Knight in his affidavit.
[125][2009] VSC 242.

Mr Hastings submits that Byrne J held that Mr Knight did not have a legal right or the Commissioner did not have a legal duty to permit Mr Knight to purchase or have an in cell personal computer.[126]
[126]Ibid [19].

In Mr Hastings’ written reply submissions, prepared by Mr Hanks and Mr Mitchell of counsel, he accepts that two general principles in Raymond v Honey[127]have been adopted in Australia: Mr Knight’s first and second propositions that every person has a right of unimpeded access to the courts, which may only be taken away by express enactment.
[127][1983] 1 AC 1.

Mr Hastings submits that in Australia the content of the common law right of unimpeded access to the courts in this context has been the subject of little judicial consideration. He says that the infringement established in Raymond v Honey[128] was the interception by prison authorities of an application the prisoner wanted to be issued in the High Court of England.
[128]Ibid.

He argues that in Dagi v The Broken Hill Proprietary Co Ltd,[129] Cummins J found that the defendant had committed a contempt by entering into an agreement with the sovereign nation of Papua New Guinea, which agreement provided for the passing of legislation in Papua New Guinea that would impede the plaintiff's right to legal remedies and the due administration of justice in Victoria.
[129][2000] VSC 486.

He submits that in R v Secretary of State for the Home Department; Ex parte Leech (No 2)[130] it was accepted that access to a solicitor for the purpose of receiving advice and assistance in connection with the possible institution of civil proceedings in the courts forms an inseparable part of a prisoner's right of access the courts. He says that decision has received some recognition in Australia.[131]
[130][1994] QB 198 at 216.
[131]For example, W231101A v Minister for Immigration & Multicultural Affairs [2002] FCA 80.

Mr Hastings contends that the high water mark for Mr Knight is the discussion by Gillard J of the right of access to the courts in obiter dicta in Rich v Groningen.[132] Mr Hastings says that Gillard J was of the opinion that taking away appeal documents, which would have the effect of making it impossible for a party to present its case, would infringe the right of access to the court. Gillard J said that it would be equivalent to physically preventing the person from attending court.[133]
[132](1997) 95 A Crim R 272.
[133]Ibid at 287-288.

However, Mr Hastings says that Gillard J recognized that the right of access to appeal documents was not absolute, and was subject to:[134]
[134]Ibid at 288-289.

(a) physical limitations inherent in the size of the prisoner's cell;

(b) prison management restrictions on property permitted to be held in a cell;

(c) fitting in with prison officers' other duties;

(d) security considerations; and

(e) over-riding powers found in the legislation, including the exercise of
discretion in deciding what property to permit to be held in a cell.

Mr Hasting argues that adopting Gillard J's formulation, Mr Knight would need to demonstrate that the actions of the proposed defendants, in not permitting him to have a computer in his cell, are making it impossible for Mr Knight to present his case in this proceeding, and that granting him an in cell computer would remedy the infringement.

Mr Hastings contends that the question of whether Mr Knight’s rights have been breached is a factual enquiry, and the necessary conditions to ensure that the right is not infringed will vary from case to case. He argues that it can be of no assistance to point to other prisoners who have been granted in cell computers in order to establish that, in not having an in cell computer, Mr Knight is being denied access to the courts in breach of his common law rights.

Mr Hastings notes that Mr Knight relies on Rich v Magistrates’ Court of Victoria,[135] R v Rich (Ruling No 2),[136] R v Rich (Ruling No 3),[137] R v Rich (Ruling No 20)[138] and R v Rich (Ruling No 22)[139] as authority for the proposition that access to a personal in cell computer falls within the meaning of "reasonable facilities", and is therefore essential to a right of unimpeded access to the courts. He says that none of those decisions stands for that proposition, and they are factually very different from the present circumstances.
[135][2007] VSC 65.
[136](2008) 184 A Crim R 161.
[137][2008] VSC 219.
[138][2009] VSC 24.
[139][2009] VSC 39.

Mr Hastings contends that in Rich v Magistrates’ Court of Victoria,[140] the accused complained he would be unable to obtain a fair hearing because he was denied facilities that he required as part of his preparation for the committal for a complex and lengthy murder trial. Maxwell P found that:

…. the irreducible minimum for someone in Mr Rich's position is either to have a computer which enables him to read in electronic form material relating to the committal, including material prepared by him, or ... to have access to that material in printed-out form.[141]

[140][2007] VSC 65.

[141]Ibid at [44].

He submits that R v Rich (Ruling No 2)[142] concerned an application to a trial judge to stay a murder trial on the basis that inadequate facilities (among other things) would render the trial unfair. He contends that the particular factual complexities in that case are significantly different from the instant application. He says that the issue of unimpeded access to the courts was not considered.
[142](2008) 184 A Crim R 161.

He says that R v Rich (Ruling No 3)[143] and R v Rich (Ruling No 20)[144] were decisions refusing a stay of a murder trial on the basis that the accused was denied internet access, which he required to retrieve data that would establish alibi evidence. He says that the stay was refused. He says that R v Rich (Ruling No 22)[145] was a decision in relation to an adjournment application by Mr Rich. The application was refused, and there was no consideration of the question whether an in cell computer was fundamental to the right to a fair trial.
[143][2008] VSC 219.
[144][2009] VSC 24.
[145][2009] VSC 39.

He concludes that there is nothing in any of those five decisions that alters the position from that in Rich v Groningen.[146] He contends that the evidence must be assessed against the question whether the proposed defendants are making it impossible for Mr Knight to conduct this proceeding.
[146](1997) 95 A Crim R 272.

Mr Hastings concedes that for the purpose of this leave application, the proposed defendants have not adduced any evidence in answer to Mr Knight’s evidence. He says, however, that taking Mr Knight’s evidence at its highest, there is no reasonable basis on which the court could be satisfied that the proposed respondents are making it impossible for Mr Knight to bring or conduct this proceeding.

Mr Hastings submits that the application is foredoomed to fail. He says first, that Mr Knight has not identified a single instance of denial of access to the courts, or of his inability to prepare a document, such that he has suffered any prejudice. He says the bare assertion at paragraph 81 of Mr Knight’s affidavit of 4 March 2010 could not be accepted as demonstrating an infringement of his right of unimpeded access to the courts.

He argues that on the contrary, the volume and content of documentation produced by Mr Knight in a short time in this proceeding demonstrates that he has sufficient research and word processing facilities. Mr Hastings submits Mr Knight is not being prevented from conducting the proceeding and his access to the court is not being impeded.

Mr Hastings submits that secondly, Mr Knight has chosen to issue five separate legal proceedings contemporaneously, while at the same time undertaking an undergraduate degree and volunteering as minute taker for the Port Phillip Prison Prisoners Representatives Committee meetings. He says that prisoner education can undoubtedly be an important part of rehabilitation and should be encouraged. However, he says, that Mr Knight’s allocation of his available computer time is a matter for him. He says that Mr Knight has chosen to prioritise matters unconnected to the litigation in allocating his allotted computer time each week. Mr Hastings submits that after making that choice, Mr Knight cannot invoke the court's power to restrain a contempt, seeking to lay blame at the feet of the prison authorities for his having insufficient computer time to conduct legal proceedings.

MR HASTINGS’ SUBMISSIONS ON THE DECLARATION APPLICATION

Mr Hastings contends that although, at the hearing on 10 March, Mr Knight restricted his application to interlocutory injunctive relief, his written submissions maintain his application for leave to commence proceedings by way of a claim for a declaration.[147]
[147]Knight’s submissions [129]-[131].

Mr Hastings says that the form of the declaration is so vague that no discernible meaning could be derived from it. He argues that one would have no way of knowing whether a declaration in the form sought was endorsing or censuring the proposed defendants' current position on the provision of computer facilities to Mr Knight. He contends that the provision of a paper and pen might suffice to accord Mr Knight his rights. He says that the declaration sought would not resolve any controversy between the parties and could not be made by this court.

Mr Hastings argues that Mr Knight’s submission that, even if the grounds and relief sought in his originating motion are bad, they could be amended, and accordingly the application cannot be said to be foredoomed to fail, should be rejected. Mr Hastings says that on Mr Knight’s argument, no vexatious litigant's application for leave would ever be refused.

Mr Hastings concludes that it is for Mr Knight to establish that he has a cause of action before leave to commence is granted. He says that Mr Knight has failed to do so and should not be given leave.

VEXATIOUS LITIGANTS

Section 21 of the Supreme Court Act 1986 provides:

Vexatious litigants
(1)     The Attorney-General may apply to the Court for an order declaring a person to be a vexatious litigant.
(2)     The Court may, after hearing or giving the person an opportunity to be heard, make an order declaring the person to be a vexatious litigant if it is satisfied that the person has—
(a)     habitually; and
(b)     persistently; and
(c)     without any reasonable ground—
instituted vexatious legal proceedings (whether civil or criminal) in the Court, an inferior court or a tribunal against the same person or different persons.

(3)     An order under subsection (2) may provide that the vexatious litigant must not without leave of—
(a)       the Court; or
(b)       an inferior court; or
(c)a tribunal constituted or presided over by a person who is an Australian lawyer—

do the following—
(d)      continue any legal proceedings (whether civil or criminal) in the Court, inferior court or tribunal; or
(e)       commence any legal proceedings (whether civil or criminal) in the Court or any specified inferior court or tribunal; or
(f)       commence any specified type of legal proceedings (whether civil or criminal) in the Court or any specified inferior court or tribunal.

(4)     Leave must not be given unless the Court, or if the order under subsection (2) so provides, the inferior court or tribunal is satisfied the proceedings are not or will not be an abuse of the process of the Court, inferior court or tribunal.
(5)     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.
(6)     The Attorney-General must cause a copy of any order made under subsection (2) to be published in the Government Gazette.
(7)     The Court, when exercising a power under this section, must be constituted by a Judge of the Court.
(8)     The Court may, in determining whether to make an order under subsection (2), take into account vexatious legal proceedings (whether civil or criminal) instituted before or after the commencement of the Supreme Court (Vexatious Litigants) Act 2003.

ORDER OF SMITH J OF OCTOBER 2004

On 19 October 2004, Smith J ordered that:

(1) The defendant Julian Knight be declared a vexatious litigant;
(2) The defendant Julian Knight must not without the leave of the Court commence, within the period of 10 years from this date any legal proceedings (whether civil or criminal) in the Court, an inferior Court or any tribunal.

After examining the many proceedings Mr Knight had instituted against the prison authorities he concluded:

[35] Mr Knight has in the last three years initiated some proceedings which could not be described as vexatious. He has, however, initiated a substantial number of proceedings that were vexatious and has persisted in his pursuit of hopeless claims by initiating appeals in all such matters. He is obviously an intelligent man but refuses to accept the obvious soundness of the decisions given against him and has demonstrated a habit of pursuing vexatious claims and doing so persistently. The issue that remains is whether the discretion to declare him a vexatious litigant should be exercised.
…
[46] Considering all the proceedings identified above in these reasons, (including his successful ones) a clear picture emerges of a person who is habitually and persistently and without reasonable cause instituting hopeless, and therefore, vexatious proceedings. There is a high probability that he will continue to do so. It is true that a few proceedings had merit, but even in those cases he showed a tendency to pursue the relief sought through the appeal process even though he must have known he had no prospects of success. His conduct generally reveals a strong tendency to pursue hopeless proceedings. There is no evidence to suggest that this might change. It appears to me that an order should be made declaring him vexatious.

It is apparent that Smith J’s prediction of Mr Knight’s continuing litigious conduct has been borne out. Depending on whether the court’s discretion to grant leave is enlivened, this pattern of conduct may become relevant to the court’s discretion to grant leave.

THE CONDITIONS FOR THE GRANT OF LEAVE

In Phillip Morris Ltd v Attorney-General (Vic),[148] the Court of Appeal held that the grant of leave is discretionary and that the power to exercise the discretion can not be exercised unless the applicant for leave satisfies the court that the proceeding in respect of which leave is sought is not or will not be an abuse of process.[149] See also Knight v Anderson.[150]
[148](2006) 14 VR 538.
[149]Ibid at 541 per Maxwell P, with whom Ormiston and Eames J JA generally agreed.
[150](2007) 16 VR 532 at 534 per Bell J.

In considering whether the discretion had been enlivened, Ormiston JA and Eames JA held that on interlocutory applications, including those brought under s 21(3) of the Supreme Court Act1986, it was ordinarily not practicable to decide questions of substantive fact, but that rule was subject to exceptions in appropriate circumstances. They said the court should be free to halt in limine a claim dependent on a patently false fact, notwithstanding that it would be necessary to reach that factual conclusion before characterising the claim as an abuse of process.[151]
[151]Ibid: quoted from head note; see 562 per Ormiston JA and 570 per Eames JA.

The matters relevant to the courts discretion if the discretion is enlivened have not been exhaustively defined. In Phillip Morris Ltd v Attorney-General (Vic),[152] the court recognised that non payment of costs of a previous proceeding could be taken into account in the exercise of the discretion.
[152](2006) 14 VR 538.

In my opinion, other relevant matters to the court’s discretion may include the fact that Mr Knight has taken many other proceedings against the prison authorities including proceedings to obtain an in cell personal computer.

As to what constitutes an abuse, Maxwell P in Phillip Morris identified as an example of abuse, proceedings that can be clearly seen to be foredoomed to fail. Maxwell P said in relation to this issue:[153]
[153]Ibid at 541-542.

[15] Phillip Morris submitted that the question of abuse of process should be approached by reference to what Mason, C.J. in Rogers v The Queen[154] identified as its two aspects, namely[155] –
[154](1984) 181 CLR 251.
[155]Ibid at 256.
"... first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute."

[16] Earlier, Mason, C.J. had said:[156]
[156]Ibid at 255.
"The concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object, in that it is not that party’s genuine purpose to obtain the relief sought in the second proceedings. The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories."

[17] His Honour noted the recognition by the majority of the High Court in Williams v Spautz,[157] that –
[157](1992) 174 CLR 509.
the concept [of abuse of process] extends beyond use of court processes for ulterior purposes to the use of such processes so as to cause vexation or oppression.

[18] Phillip Morris also relied on what was said by McHugh, J. in Rogers v The Queen,[158] where his Honour said that abuse of process usually fell into one of three categories, as follows:
[158](1984) 181 CLR 251.
(a) the Court’s procedures are invoked for an illegitimate purpose;
(b) the use of the Court’s procedures is unjustifiably oppressive to one of the parties;
(c) the use of the Court’s procedures would bring the administration of justice into disrepute.[159]
[159](1984) 181 CLR 251 at 286.

[19] In Walton v Gardiner,[160] Mason, C.J., Deane and Dawson JJ. said that the jurisdiction to stay proceedings that are an abuse of process –
…extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness."

[20] Their Honours gave the following examples of abuse of process:[161]
(a) where the proceedings can be clearly seen to be foredoomed to fail;
(b) where the court in which the proceedings are instituted is, in all the circumstances, a clearly inappropriate forum;
(c) notwithstanding that the circumstances do not give rise to an estoppel, the continuance of the proceeding would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.
[160](1993) 177 CLR 378 at 393.
[161]Ibid at 393.

APPLYING THE RELEVANT PRINCIPLES

As indicated above, Mr Knight bears the onus of satisfying the court that the proceeding in respect of which leave is sought is not or will not be an abuse of process. In my view, categories (a) and (c) set out above as referred to by Mason CJ, Deane and Dawson JJ in Walton v Gardiner,[162] are relevant to this application.
[162](1993) 177 CLR 378 at 393.

Applying (a), has Mr Knight satisfied the court that his proposed proceeding is not or will not be doomed to fail? This question needs to be answered separately in relation to the relief sought in paragraphs 3(a) and 3(b) or the origination motion.

THE APPLICATION FOR AN ORDER IN THE NATURE OF A MANDATORY INJUNCTION

In my view Mr Knight has not satisfied the onus that he bears in relation to this proposed proceeding in paragraph 3(a). Despite filing lengthy affidavits, there is no evidence that the refusal of the relevant authorities to permit Mr Knight to have an in cell personal computer has interfered or will interfere with or impede his common law right of unimpeded access to the courts in relation to the proposed three substantive applications.

Further, if there was evidence that in relation to the three substantive applications the actions of the prison authorities were obstructing or would obstruct or interfere with his right to unimpeded access, then the court could take steps to rectify the position that do not necessarily involve Mr Knight’s applications of August and December 2009 for the use of an in cell personal computer being granted.

Mr Knight does have access to computers in the library. If this was not sufficient, then the court might require such steps be taken to allow Mr Knight to have unimpeded access to the courts as determined in the particular circumstances of the case before it. This may be achieved by a variety of means. As discussed above, it may be that Mr Knight could be given greater access to the library computers, or even if the library computers were insufficient, he might be given the limited use for a limited time of a computer in his cell to produce specific court documents that needed to be produced for the three substantive applications. I accept that it would be easier for Mr Knight to prepare court documents if he had access to an in cell computer. If Mr Knight is delayed in filing documents because of his limited access to a computer then the court may be able to make allowances for this fact. It may be that other solutions could be availed of.

The issue is not what would be easier or more convenient to Mr Knight. The issue is whether his access to the court in relation to the substantive applications is or will be impeded.

What is clear, however, is that means are available that do not necessarily involve the grant of Mr Knight’s application by the prison authorities for the use of an in cell personal computer during the preparing and hearing of the substantive applications.

Traditionally the courts have been reluctant to permit prisoners to resort to legal remedies so that in some measure responsibility for their discipline and control could be transferred to the courts.[163] For the purposes of considering this application, I have given little or no weight to this principle. Nevertheless, in my opinion, on the material before the court, Mr Knight has not satisfied the court that an application for the mandatory injunction he seeks is not or will not be foredoomed to fail. Accordingly, I find Mr Knight has not satisfied the court that the proposed proceeding is not or will not be an abuse of the process of the court within the meaning of s 21(4) of the Supreme Court Act 1986.
[163]Flynn v R (1949) 79 CLR 1 at 8 per Dixon J; but see comments of Gillard J in Rich v Groningen (1997) 95 A Crim R 272 about the current practice of the courts in relation to reviewing the decisions of prison authorities.

In view of my finding on ground (a), it is not necessary for me to consider ground (c), that is whether the continuance of the proceeding would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings in Knight v Money.[164]
[164][2009] VSC 242.

APPLICATION FOR DECLARATORY RELIEF

The history of Mr Knight’s applications raises some important issues relating to the existing criteria applied to applications for in cell computers, the relevance of Mr Knight being a vexatious litigant and the fact that Mr Knight’s proceedings are proposed to be against the prison authorities.

The existing Commissioner’s Requirement: Prisoner Property – Prisoner Computers (May 2009) criteria provides that permission to access an in cell computer solely in order to work on civil matters will not ordinarily be granted.

Access to the court almost invariably involves the preparation of type written documents. Type writers are no longer in use. The only practical way to comply with rules of courts is with the use of a computer. A court may find that the Commissioner’s Requirement does not expressly recognise that a prisoner has the right of unimpeded access to the courts in civil cases as well as criminal and that it may be necessary not to refuse a prisoner’s request to have an in cell personal computer to avoid that access being impeded in a civil case.

In Mr Money’s letter of 2 March 2009, he said that “while civil actions may justify an in cell computer, in your position as a declared vexatious litigant, it is not appropriate”.[165] Insofar as that suggests that Mr Knight might be denied access to an in cell personal computer, in circumstances where to deny the same would have the effect of impeding his access to the courts, then that may be an unjustifiable denial of his right to unimpeded access to the courts. The legal consequences of being declared a vexatious litigant are described above. A court may find that the fact that a person has been declared a vexatious litigant is entirely a matter for the court to deal with. A court may find the fact that Mr Knight has been declared a vexatious litigant does not make it less appropriate for Mr Knight to have unimpeded access to the court to seek leave to bring proceedings under the Supreme Court Act 1986 or leave that he otherwise may seek. On the other hand, a court may not so find. In my view, however, the matter is open to be resolved.
[165]Exhibit JK 17.

Mr Knight asserts that the defendants may be motivated in their refusal to allow him access to an in cell personal computer as the applications he has made in the past, and the three substantive applications, are all against them. In my view, the motive of the defendants is irrelevant to the present application. What is important, however, is the effect of their decisions. A court may find that the relevant prison authorities have to be alert to the fact that without just cause they are not entitled to take steps to deny or impede Mr Knight’s access to the courts.

In my opinion, an application for declarations relating to these and similar matters are not necessarily foredoomed to fail. I note that in Rich v Groningen[166] Gillard J was asked to make declarations concerning Rich’s entitlement to unimpeded access to the court. Gillard J declined to make the declarations and instead expressed some views on the matter. On the other hand, in Ainsworth v Criminal Justice Commission[167] and NAFC v Minister for Immigration & Multicultural & Indigenous Affairs[168] declarations were made even though the applications for an injunction or prerogative writs were refused.
[166](1997) 95 A Crim R 272.
[167](1992) 175 CLR 564.
[168](2002) 126 FCR 99.

It is customary for an application for equitable relief to include a claim for such further or other relief as the court thinks fit. In my view Mr Knight’s current application should be taken to seek such relief.

The declaration that Mr Knight seeks is that a prisoner’s common law right of unimpeded access to the court encompasses having meaningful access to the means of producing court documents. In my view an application for such a declaration would probably fail. On the other hand, I consider that a court may grant a declaration or declarations that deal with the actual legal controversies that have arisen in Mr Knight’s lengthy attempts to have access to an in cell personal computer, as referred to in the material before the court and in particular those matters I have discussed above.

I consider that there may be foreseeable consequences for the parties if such declarations are made. In particular, I consider there may be foreseeable consequences for the further conduct of the three substantive applications that Mr Knight seeks leave to institute under his application of 17 December 2009.

In my opinion, it cannot be said that the application for a declaration sought in paragraph 3(b) of his origination motion is foredoomed to fail.

Would such an application be an abuse under ground (c), that is notwithstanding that the circumstances do not give rise to an estoppel, the continuance of the proceeding would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings?

Mr Knight’s proceedings against Mr Money involved an application for the judicial review of Mr Money’s decision. In my view, the proposed proceeding would not be seeking to litigate anew that proceeding. The current application for leave could not have been litigated then as it relates solely to the three substantive applications which were not on foot when his prior application was dealt with.

In those circumstances, Mr Knight has satisfied me that such an application is not an abuse of process and my discretion is enlivened to grant him leave to initiate proceedings under paragraph 3(b) of his origination motion.

In exercising my discretion I consider it is relevant to take into account that Mr Knight has already sought to bring proceedings against Mr Money to review his decision to refuse Mr Knight access to an in cell computer. I also take into account the many other proceedings that Mr Knight has brought against the prison authorities. On the other hand, I have taken into account the important and long standing right of every citizen to unimpeded access to the courts of law.

CONCLUSION

The application for leave to commence the proceedings referred to in paragraph 3(a) of the originating motion of 17 December 2009 is refused.

As to the proposed proceeding referred to in paragraph 3(b), I think any leave to institute proceedings should be on conditions that make it relevant to the hearing of the proposed three substantive applications. Accordingly, leave is given to commence the proceedings referred to in paragraph 3(b) of the originating motion of 17 December 2009 or for such other declaration as the court thinks fit arising out of the matters referred to in the affidavits referred to above on condition that:

(a) the proceedings are limited to seeking such declaratory relief prior to and for the sole purpose of the hearing of the substantive applications referred to in paragraphs (4), (5) and (6) of the originating motion of 17 December 2009; and

(b) rely solely on the ground of the common law right to unimpeded access to the courts.

I will order that the plaintiff’s costs be costs in the proposed proceeding.

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[2010] VSC 99

3 May 2010