Knight v Money

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. S CI 2013 480
No. S CI 2013 2044

JULIAN KNIGHT	Plaintiff/Applicant
v
BRENDAN MONEY	Defendant/Respondent

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 August 2013. Last written submission filed 27 September 2013
DATE OF JUDGMENT:	24 March 2015
CASE MAY BE CITED AS:	Knight v Money
MEDIUM NEUTRAL CITATION:	[2015] VSC 105	Revision No 1: 27 March 2015

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PRACTICE AND PROCEDURE – Vexatious litigant – Applications for leave to commence proceedings – Applicant a prisoner under sentence – Proposed challenges to aspects of sentence management ‑ Whether proposed proceedings would not be an abuse of process – Whether proposed proceedings would not be foredoomed to fail – Applications dismissed – Supreme Court Act 1986 s 21 – Vexatious Proceedings Act 2014 ss 29, 32, 54, 55, 90, 91, 92, 93, 100, 101 – Interpretation of Legislation Act 1984 s 14 – Corrections Act 1986 ss 6A, 20, 21, 47, 56AC, 73A, 74, 74AA, 74AAB, 112 – Corrections Regulations 2009, reg22, 23, 24, 25, 26.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff/Applicant	The applicant in person
For the Defendant/Respondent	Ms C M Harris	Victorian Government Solicitor’s Office

HIS HONOUR:

Introduction

Mr Julian Knight is serving a sentence of life imprisonment with a minimum non-parole period of 27 years for multiple murders committed by him in a notorious massacre in the vicinity of Hoddle Street, Clifton Hill in 1987. Mr Knight’s minimum non-parole period expired on 8 May 2014. However, he remains in prison.

During his imprisonment, Mr Knight has commenced or sought to commence numerous legal proceedings and has made numerous official complaints, mainly about the conditions of his imprisonment. On 19 October 2004 Smith J made an order under s 21(2) of the Supreme Court Act 1986 (as it then stood) declaring Mr Knight a vexatious litigant. The order further provided that, for a period of ten years from the date of the order, Mr Knight was not to commence any legal proceedings in this Court or any other court or tribunal without the leave of this Court.[1] Mr Knight has since made many applications for leave to commence legal proceedings pursuant to the order of Smith J. Two such applications are before the Court now. They are related. In short, Mr Knight seeks leave to bring claims by way of judicial review in relation to his sentence plan in prison and in relation to a refusal to transfer him from an ordinary prison to a transitional centre. A common theme of the two applications is Mr Knight’s desire to be released on parole. The proposed defendant in each proposed proceeding is Mr Brendan Money, a senior official of Corrections Victoria. Mr Money was served with both applications for leave and he appeared by counsel to oppose the grant of leave in each case.
[1]Attorney-General (Victoria) v Knight [2004] VSC 407. Section 21 was repealed from 31 October 2014 by the Vexatious Proceedings Act 2014. As to the applicable transitional provisions, see below.

Since the present applications were argued in August and September 2013, certain events have occurred – being a series of legislative changes (including changes relating to parole), the expiry of Mr Knight’s minimum non-parole period and the making of certain decisions in other cases in this Court relating to Mr Knight – all of which might be thought to bear on the present applications. However, neither party has made any approach to the Court in relation to any of these events. I have on several occasions considered whether I should of my own motion re-list the hearing and invite submissions on them, having regard particularly to the fact that Mr Knight was not legally represented. In the end, however, I was satisfied that justice did not require any further hearings. For the reasons I will set out in due course, I was of the view that, as matters had stood originally, Mr Knight’s two applications fell to be dismissed. Justice could only have required a further hearing if one or more of the intervening events might conceivably have required a different result. However, subject to one qualification, each of the intervening events could only have made Mr Knight’s position, if anything, even worse. The qualification was that it might possibly have been suggested by or on behalf of Mr Knight that the legislative changes relating to parole (which occurred between November 2013 and July 2014) supported the view that, when the decisions in question were being made (in December 2012 and March 2013), he had a prospective right, or a legitimate expectation, to be granted parole on or shortly after his earliest eligibility date, namely 8 May 2014. However, as I will further explain in due course, I was satisfied that any such suggestion would necessarily have failed and that the submission in question would have remained completely unacceptable. So, I remain of the view that both of Mr Knight’s applications for leave to proceed must be dismissed. I hold that view even without taking into account adversely to Mr Knight any of the intervening events. Nevertheless, I should at this stage list the intervening events.

The intervening events

Chronologically speaking, the intervening events began soon after the last of the parties’ written submissions was received on 27 September 2013, and they continued from time to time up until 20 February 2015, as follows:

6 November 2013

Commencement of Corrections Act 1986 s 73A headed “Safety and protection of the community paramount in parole decisions”.

2 April 2014

Commencement of Corrections Act 1986 s 74AA headed “Conditions for making a parole order for Julian Knight”.

8 May 2014

Expiry of minimum non-parole period for Julian Knight.

1 July 2014

Commencement of Corrections Act 1986 s 74AAB, headed “Release on parole of person in prison for sexual offence or serious violent offence”.

16 October 2014

Order of T Forrest J varying the order made by Smith J on 19 October 2014 so as to extend the ten year period during which Mr Knight could not bring a legal proceeding without leave of the Supreme Court.

31 October 2014

Commencement of Vexatious Proceedings Act 2014 and repeal of s 21 of the Supreme Court Act 1986.

20 February 2015

Judgment of Ginnane J in Knight v Shuard,[2] especially [6]-[12], [63] and [64] insofar as they relate to the order of T Forrest J of 16 October 2014 and to the introduction of the Vexatious Proceedings Act 2014.

[2][2015] VSC 36.

The amendments of the Corrections Act 1986 on 6 November 2013, 2 April 2014 and 1 July 2014 relating to parole, and the expiry on 8 May 2014 of the minimum non-parole period for Mr Knight, are matters to which I will return in connection with the substantive aspects of Mr Knight’s proposed proceedings.

In the meantime it is desirable, first, to deal with the extension, by the order of T Forrest J of 16 October 2014, of the period of the leave requirement; and then, in the context of the test for leave, to deal with the commencement on 31 October 2014 of the Vexatious Proceedings Act 2014 and the concomitant repeal of s 21 of the Supreme Court Act 1986. In dealing with those matters I will refer also to the above mentioned judgment of Ginnane J in Knight v Shuard.[3]
[3]Ibid.

The extension of the restriction on Mr Knight

As mentioned above, the restriction on the bringing of legal proceedings by Mr Knight contained in the order of Smith J of 19 October 2004 was expressed to extend for a period of ten years from the date of that order. In other words, the restriction was due to expire on 18 October 2014. However, it seems that the restriction did not in fact come to an end on that day. About six weeks earlier, on 5 September 2014 (as appears from the published reasons of T Forrest J in Attorney-General v Knight[4] and from the order made by his Honour on 16 October 2014 in that matter) the Attorney-General for the State of Victoria had filed a summons for a further order declaring Mr Knight to be a vexatious litigant pursuant to s 21(2) of the Supreme Court Act 1986 (as it then stood) or alternatively for the removal of the ten year limit on the period of the restriction imposed by the order of Smith J of 19 October 2004. T Forrest J was satisfied that, in one form or another, the restriction should be continued until the final determination of the Attorney’s application brought by the summons filed on 5 September 2014, or until earlier order. In considering the form in which the interlocutory order should be made, T Forrest J took into account that the Vexatious Proceedings Act 2014 was due to come into operation on 31 October 2014, whereby s 21 of the Supreme Court Act 1986 would be repealed. His Honour took the view that the transition between the regimes would be simpler if there was, at the time of the repeal, an extant order under s 21(2) of the Supreme Court Act 1986. In those circumstances, his Honour decided to order, under s 21(5) of the Supreme Court Act 1986, that the restriction imposed by Smith J be varied by being extended until the hearing and determination of the Attorney’s application or earlier order.[5]
[4][2014] VSC 549 (16 October 2014).
[5]Ibid, [61].

As indicated above, neither party sought to approach the Court for the purposes of this case in relation to the expiry of the original ten year term or in relation to the order of T Forrest J apparently extending that term. Mr Knight did not seek to withdraw the present applications on the basis that he no longer needed leave to commence the proposed proceedings. Nor did Mr Money contact the Court to suggest that Mr Knight no longer needed leave. The Attorney’s application that was before T Forrest J remains pending (elsewhere in the Court) and no further variations of the restriction order made by Smith J have yet occurred. Hence it is appropriate for me to assume that the restriction imposed by Smith J has been duly extended and that Mr Knight’s two applications for leave still need to be determined. I note that, in Knight v Shuard,[6] Ginnane J proceeded on a corresponding basis.
[6][2015] VSC 36, [6].

As T Forrest J anticipated, and as appears from the above list of intervening events, the Vexatious Proceedings Act 2014 duly came into operation on 31 October 2014. The principal question that arises from the introduction of that Act is whether the test for leave to proceed applicable to the present applications has been altered. I turn to that and related matters now.

The test for leave to proceed and the commencement of the Vexatious Proceedings Act 2014

When the present applications for leave to proceed were made and argued, they were governed by s 21(4) of the Supreme Court Act 1986 and by the principles relating to that provision stated by the Court of Appeal in Phillip Morris Ltd v Attorney-General (Vic),[7] as both parties accepted. By virtue of s 21(4), leave was not to be given unless the Court was satisfied that the proposed proceedings were not or would not be an abuse of the process of the Court. As Bell J pointed out in Knight v Anderson,[8] the Phillip Morris case decided that s 21(4) operated to confer a discretion to grant leave which was enlivened after the relevant court became satisfied that the proceeding would not be an abuse of process. The onus was on the applicant to so satisfy the court. One form of abuse of process is the bringing of a claim that is foredoomed to fail. As Bell J helpfully continued:[9]

In considering whether a proceeding would be an abuse of process, it is sometimes relevant to consider its prospects of success, but in a strictly limited respect. The issue is whether the proceeding is foredoomed to fail, not whether it has reasonable grounds.[10]
Contrary to the submissions of the Commissioner for Corrections, if the court decides a proceeding would not be an abuse of process because it would not be foredoomed to fail, it cannot treat an absence of reasonable grounds as a discretionary reason to refuse leave. Abuse of process, not absence of reasonable grounds, is the foundation of the statutory discretion, and the latter cannot be brought in through the back door. To admit it at the discretionary stage would be inconsistent with the terms of the power conferred by s 21(4) and contrary to the decision in Phillip Morris as I read it.[11]

[7](2006) 14 VR 538.

[8](2007) 16 VR 532, 534 [7].

[9]Ibid. His Honour’s analysis has been followed subsequently: see Knight v Hastings [2011] VSC 332, [4]-[5] (Emerton J); Knight v Selisky [2012] VSC 635, [3]-[4] (Bell J); Knight v Shuard [2014] VSC 475, [5]-[7] (Rush J).

[10]Phillip Morris (2006) 14 VR 538, 556 (Maxwell P, Ormiston and Eames JJA concurring).

[11]See (2006) 14 VR 538, 556 and 563-4.

The whole of s 21 of the Supreme Court Act 1986 was repealed from 31 October 2014 by s 102 of the Vexatious Proceedings Act 2014. The 2014 Act introduced an elaborate new scheme relating to vexatious litigants and vexatious litigation. The new Act provides[12] that an order made under the former s 21(2) of the Supreme Court Act 1986 declaring a person to be a vexatious litigant is now taken to be a ‘general litigation restraint order’ made under the new Act. Section 54 of the new Act provides that a person who is subject to a general litigation restraint order may apply for leave to commence or continue a proceeding and that the application must be made to the Victorian court or tribunal that would hear the proceeding to which the application relates. Section 55 provides that, on an application under s 54, the relevant court may grant leave to proceed if the Court is satisfied that the proceeding is not a “vexatious proceeding” (as defined) and that there are “reasonable grounds for the proceeding”. The definition of “vexatious proceeding” is inclusive and it extends to, among other things, “a proceeding that is an abuse of a court or tribunal”.
[12]By s 91(1).

Plainly the new test is more difficult for a leave applicant to meet than the old test. Not only must the Court be satisfied that the proposed proceeding would not be an abuse of process, it must also be satisfied that the proposed proceeding would not otherwise be a “vexatious proceeding” (as defined) and, moreover, that there are “reasonable grounds for the proceeding”. The onus remains with the applicant; and a residual discretion to refuse leave also remains.

The question whether the old test or the new test applies in a pending leave application arose in Knight v Shuard.[13] There, the defendant had submitted that the earlier test could no longer apply because the vexatious litigant order of Smith J had become a “general litigation restraint order” by virtue of “the transitional provisions”.[14] The reference to the transitional provisions was apparently a reference to one particular transitional section of the 2014 Act, namely s 91, which does indeed provide that an order declaring a person to be a vexatious litigant made under s 21(2) of the Supreme Court Act 1986 as in force immediately before the repeal of s 21 of that Act is taken on and from that repeal to be a general litigation restraint order made by the Supreme Court under s 29 of the 2014 Act. Section 91 further provides, in effect, that the deemed terms of the deemed general litigation restraint order are the same as the terms of the actual order made under s 21(2) of the Supreme Court Act 1986. Going back to the substantive provisions of the 2014 Act, s 32 provides that on the making of a general litigation restraint order, subject to the terms of the order, a proceeding “to which the order relates” is stayed and a proceeding “that is commenced in contravention of the order” is of no effect. How, if at all, these provisions affect a leave application that was pending on 31 October 2014 is not easy to discern. The pending leave application itself is surely not a proceeding “to which the [deemed] order relates” within the meaning of s 32. Hence the pending leave application itself is surely not “stayed” by force of s 32. Nor, surely, could it be said that the pending leave application itself amounts to a proceeding “that is commenced in contravention of the [deemed] order” within the meaning of s 32. The remaining issue, then, is whether a substantive proceeding for the commencement of which leave was sought in the pending leave application would, if commenced without a fresh application for leave under the 2014 Act and a fresh grant of leave pursuant to such an application, be commenced “in contravention of the [deemed] order” within the meaning of s 32. Arguably, if the terms of the order prohibited the commencement of a substantive proceeding of the proposed kind only where prior leave to commence the proceeding had not been obtained, and if the pending application for leave was, as a matter of law,[15] preserved and still on foot, and if the application was actually granted, then the substantive proceeding, when in fact commenced, might not be able to be characterised as having been commenced “in contravention of the [deemed] order”. However, Mr Knight (who was not legally represented) made no such submission to Ginnane J nor any other submission to the contrary of the defendant’s (Mr Shuard’s) submission and his Honour accepted the defendant’s submission.[16] His Honour did not otherwise refer to the transitional provisions of the 2014 Act, nor to the general transitional provisions contained in the Interpretation of Legislation Act 1984.[17] Strictly speaking, his Honour did not need to consider those matters because, ultimately, his Honour ruled that the same result would have been arrived at under the old test.[18]
[13][2015] VSC 36.
[14]Ibid, [10].
[15]For example, by reason of the operation of s 14 of the Interpretation of Legislation Act 1984: see below.
[16][2015] VSC 36, [11].
[17]Nor did his Honour refer to the new procedural requirements contained in Division 4 of Part 8 of the Vexatious Proceedings Act 2014. See further below.
[18][2015] VSC 36, [64].

By contrast, as indicated above, neither party has sought to raise with me the question whether the new test should be applied in the present matters instead of the old test. The transitional provisions of the 2014 Act are quite detailed. They are contained in Part 12 of the Act, comprising ss 90-101. But nothing in Part 12 or in any other part of the 2014 Act deals explicitly with the case of an application for leave to proceed which was pending as at the date (31 October 2014) of the repeal of s 21 of the Supreme Court Act 1986.[19] Section 55 of the 2014 Act (which, as mentioned above, authorises courts to grant leave to proceed in defined circumstances) relates only to applications for leave made under s 54. No provision expressly deems an application for leave made under the terms of an order made under the old legislation to be an application for leave made under s 54 of the new legislation. Nor have any regulations dealing with transitional matters been made under the specific power conferred by s 100 of the 2014 Act to make such regulations. On the other hand, s 90 of the 2014 Act expressly provides that, except where the contrary intention appears, Part 12 does not affect or take away from the Interpretation of Legislation Act 1984. So far as may be presently relevant, s 14(2) of the Interpretation of Legislation Act 1984 provides:
[19]Compare ss 92 and 93 of the 2014 Act. It is tolerably clear that the transitional provisions contained in ss 92 and 93 apply only to pending applications under s 21 of the Supreme Court Act 1986 for a declaration that a person is a vexatious litigant.

(2) Where an Act or a provision of an Act ‑
(a) is repealed …;
…

the repeal … shall not, unless the contrary intention expressly appears ‑
…
(d)affect the previous operation of that Act or provision or anything duly done or suffered under that Act or provision;
(e)affect any right, privilege, obligation or liability acquired, accrued or incurred under that Act or provision;

…
(g)affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation … [or] liability … as is mentioned in [para (e)]—

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced … as if that Act or provision had not been repealed … .

Arguably, s 14(2) preserves Mr Knight’s pending leave application and requires the Court to hear and determine it as though s 21 of the Supreme Court Act 1986 had not been repealed.[20]

[20]See and compare Esber v Commonwealth (1992) 174 CLR 430; Pearce & Geddes, Statutory Interpretation in Australia (8^th edition, 2014), [6.9]-[6.14], [10.28].

Further, Div 4 of Part 8 of the 2014 Act contains elaborate new procedural requirements for applications for leave to proceed.[21] It would be an odd thing if, even in a case where an application for leave had already been heard and judgment had been reserved (like the present case), a new application for leave had to be made; and all the more odd if such an application had to be made in accordance with all of the elaborate new procedural requirements. This may give a strong clue to Parliament’s intention in relation to the transitional position generally, including the question of the applicable test.
[21]Some of these requirements were referred to recently by McMillan J in Knight v Minister for Corrections [2015] VSC 56, [15]-[17].

In any event, in all the circumstances (including especially the absence of any approach to the Court on the point), I consider that I should assume in Mr Knight’s favour, without deciding, that by virtue of s 14(2) of the Interpretation of Legislation Act 1984 Mr Knight’s present applications for leave may continue, and may be determined, as though s 21 of the Supreme Court Act 1986 had not been repealed and as though sub-s (4) thereof continued to supply the applicable test, to the exclusion of the corresponding provisions contained in s 55 of the 2014 Act. Likewise, I consider that I should assume, without deciding, that the principles stated by the Court of Appeal in the Phillip Morris case, as analysed by Bell J in Knight v Anderson,[22] continue to apply to the present case.
[22](2007) 16 VR 532, 534 [7].

I note that s 101 of the 2014 Act provides that if any difficulty arises because of the operation of that Act in relation to a proceeding to which Part 12 applies, the Court may make any order it considers appropriate to resolve the difficulty; and that such an order may be made either on the application of a party or on the Court’s own motion. I have considered whether to make an order of my own motion under s 101 to the effect that the present applications may continue and be determined in accordance with the provisions of s 21(4) of the Supreme Court Act 1986 as in force immediately before the commencement of the Vexatious Proceedings Act 2014 and to the exclusion of the provisions of s 55 and of Div 4 of Part 8 of the Vexatious Proceedings Act 2014. In the end I have concluded that it would not be appropriate to make such an order in the absence of submissions from the parties. On the other hand, I am, in effect, dealing with Mr Knight’s applications in the same way as I would have dealt with them under such an order.

The ultimate issues and short conclusions

At the hearing, the ultimate issue between the parties in each case was whether, applying the Phillip Morris principles, the proposed proceeding was not foredoomed to fail. On the abovementioned assumptions which I have made relating to the order of T Forrest J of 16 October 2014 and relating to the introduction of the Vexatious Proceedings Act 2014, that remains the ultimate issue in each case.

On any view, the burden of showing that a proposed proceeding is not foredoomed to fail rests with Mr Knight. Even without taking into account adversely to Mr Knight any of the abovementioned intervening events, I am not satisfied that either proceeding would not be foredoomed to fail. That is to say, I am not satisfied that either proceeding would not be an abuse of process. Accordingly, leave to proceed must be refused in both cases. For good measure, I add that, even making the same assumptions and taking the same approach, I am of the positive view that each proceeding would be foredoomed to fail and would therefore be an abuse of process.

Judicial review of prison administration generally

In his written and oral submissions before me, Mr Knight cites several cases relating to applications for judicial review made by prisoners, sometimes successfully, against correctional authorities in various Australian jurisdictions.[23] These cases tend to show that, generally speaking, whatever may have been the case in the past,[24] courts in Australia regard administrative decisions made by correctional authorities which affect the individual interests of prisoners, including decisions relating to matters such as classification, security ratings and placement, as being subject to judicial review. However, this is ultimately of no assistance to Mr Knight in the present cases because his proposed challenges to the particular decisions in question would be hopeless.
[23]The cases principally relied upon by Mr Knight are Bartz v Department of Corrective Services (2000) 116 A Crim R 371; [2000] QSC 336 (Holmes J), especially at [22]-[23], [70]; Barrow v The Chief Executive, Department of Corrective Services [2002] QSC 168 (Holmes J), especially at [7]-[9]; McCallum v Commissioner of Corrective Services (NSW) [2002] NSWSC 497 (Burchett AJ), especially at [1]; and Knight v Anderson (2007) 16 VR 532 (Bell J), especially at [14] and [17].
[24]See R v Classification Committee; Ex parte Finnerty [1980] VR 561 (Kaye J (snr)); McEvoy v Lobban [1990] 2 Qd R 235; compare Barreto v McMullan [2014] WASCA 152, [133]-[145], [185]-[190].

The “sentence plan” application: S CI 2013 480

I turn first to the earlier of Mr Knight’s two applications, namely proceeding number S CI 2013 480. It was commenced by originating motion in the Judicial Review and Appeals List. The application is for leave to bring a proceeding by way of judicial review under O 56 of the Supreme Court (General Civil Procedure) Rules 2005.

As indicated above, the proposed defendant in this and the related application for leave is a senior official of Corrections Victoria, Mr Brendan Money. At the relevant time, Corrections Victoria was a part of the then Department of Justice. Various Departmental titles are ascribed to Mr Money in Mr Knight’s extensive paperwork, but it is unnecessary to identify Mr Money’s correct title. For the purposes of the present application, no issue is taken as to the appropriate proposed defendant. However, amendments would be required if leave were to be granted, because the proposed proceeding, if properly framed, would consist, or consist mainly, of an attack on what was allegedly done or omitted to be done by a multi-member body, namely a “sentence management panel” appointed under reg 23 of the Corrections Regulations 2009 by the Secretary to the Department of Justice. Mr Money was but one member, albeit the chair, of the relevant sentence management panel. Mr Knight has not pointed to anything that would indicate that Mr Money had any individual decision-making role, whether as a Departmental officer or as a delegate of the Secretary or otherwise, in connection with the matters complained of by Mr Knight in his “sentence plan” application.

The proposed substantive claim is set out in paragraph 2 of the originating motion, as follows:

The plaintiff seeks from the Court an order in the nature of mandamus requiring the defendant, pursuant to section 47(1)(l) of the Corrections Act 1986 (Vic), & regulations 22-23 & 25-26 of the Corrections Regulations 2009 (Vic) to formulate a Sentence Plan for the plaintiff, on the grounds that:
(a)The defendant failed to formulate a Sentence Plan at the Annual Review of the plaintiff’s classification & placement on 6 December 2012, or
(b)In the alternative, the defendant failed to take into account relevant considerations, namely the recommendations contained in psychiatric and psychological reports submitted on the plaintiff, or
(c)In the alternative, the defendant treated the plaintiff inconsistently when compared with all other prisoners serving a sentence for murder.

It will be noted that the proposed claim is expressed as a claim for relief in the nature of mandamus, alone. Mandamus lies only for an actual or constructive refusal or failure to exercise jurisdiction conferred by law or to perform a duty imposed by law.[25] The originating motion does not expressly include a proposed claim for relief in the nature of certiorari, whereas certiorari is the remedy usually claimed where a particular decision or action of an administrator or inferior court is sought to be attacked as contrary to law. The pleading set out above and Mr Knight’s submissions indicate that his main focus is on what occurred or did not occur on a particular occasion, namely the annual review of his classification and placement on 6 December 2012.[26] The evidence shows that this review was conducted by the abovementioned sentence management panel chaired by Mr Money, and that certain decisions were made by the panel in relation to Mr Knight on that occasion. Nevertheless, Mr Money takes no point about Mr Knight’s omission to include a formal claim for relief in the nature of certiorari.

Proposed ground (a)

[25]Re Queensland Electricity Commission; ex parte Electrical Trade Union (1987) 72 ALR 1, 4; R v Bowen; ex parte Federated Clerks Union (1984) 154 CLR 207, 209-10; Re Heerey; Ex parte Heinrich (2001) 185 ALR 106, 110 [20] (Kirby J).

[26]In accordance with r 56.02 of the Supreme Court (General Civil Procedure) Rules 2005, the originating motion was filed within 60 days of the meeting of the sentence management panel on 6 December 2012.

The first of the three proposed grounds set out in the originating motion is to the effect that there was a failure to formulate a sentence plan for Mr Knight at the 6 December 2012 meeting.

This requires an examination of any relevant legal duty and a comparison between that duty and what did or did not occur.

In 2007 Mr Knight had applied for leave to bring a similar claim. In Knight v Anderson,[27] Bell J refused to grant such leave. However, the legal framework was different then. Under the legislation then in force there was, in the opinion of Bell J, no duty on any prison authority to formulate a sentence plan for Mr Knight.[28] His Honour said:[29]
[27](2007) 16 VR 532.
[28]Ibid, [14].
[29]Ibid, [10].

A sentence plan is a management tool used by the authorities to ensure a prisoner is managed in a consistent and coordinated way throughout his or her sentence. It is not referred to or mandated by the Corrections Act 1986 or the Corrections Regulations 1998.

His Honour also said:[30]
A sentence plan is a practical tool of management, not a legal necessity. It is equally clear that a positive duty to prepare such a plan cannot be read into any of the general provisions of the Corrections Act, such as those in ss 20(2) and 21(1) by which officers in charge of prisoners and the governor of a prison must take all reasonable steps, and be responsible for, the safe custody and welfare of prisoners.

In dealing with discretionary matters, his Honour observed that there had been a significant recent development, namely that Mr Knight had just been transferred from Barwon Prison to Port Phillip Prison and that he would have greater access to education and rehabilitation programs at the latter location. Further, an annual review of Mr Knight’s case was due shortly, and the authorities would then determine what programs he should be offered. Bell J observed that the forthcoming review was the “appropriate forum within which the matters related to his sentence plan and access to education should be considered”. Bell J made no specific observation as to whether or not the arrangements and proposals then in place for Mr Knight amounted to a sentence plan within his Honour’s understanding of that (then) non-statutory concept.

[30]Ibid, [14].

Ever since 1986 (including, of course, at the time of Knight v Anderson) s 47 of the Corrections Act 1986 has contained a list of prisoners’ rights. From the outset, one of those rights has been the right set out in s 47(1)(l), as follows:

(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; … .

At the time of Knight v Anderson, there was only one regulation relating to classification, namely regulation 21 of the Corrections Regulations 1998. It did little more than authorise the Secretary to maintain sentence management panels to carry out the function of “prisoner classification”. There was no elaboration in the regulations, or, for that matter, in the Act, as to the meaning or scope of “classification”.[31] Moreover, as Bell J indicated, the expression “sentence plan” did not appear in the regulations, either in the context of classification or at all, or in the Act.

[31]But see R v Classification Committee; ex parte Finnerty [1980] VR 561.

However, the “right to be classified” under s 47(1)(l) of the Corrections Act 1986 was given new content when the Corrections Regulations 2009 were made. As indicated above, Mr Knight relies, in paragraph 2 of his present originating motion, on regs 22-23 and 25-26 of the Corrections Regulations 2009 as they stood at the relevant time. Those regulations fall within Part 3 — Management and Security. That Part, in turn, includes Div 6 (Classification) and Div 7 (Placement). At the relevant time Div 6 was comprised of regs 22, 23, 24 and 25, while Div 7 was comprised of reg 26 alone. Some minor amendments to those regulations have since been made, taking effect from 1 December 2014.[32] Those very recent, minor amendments may be ignored for present purposes. It is desirable to set out the whole of Divs 6 and 7 of the Corrections Regulations 2009 as they were originally enacted:
[32]See the Corrections Amendment (Smoke-Free Prisons and Other Matters) Regulations 2014, S.R. No. 147/2014, regs 3, 6 and 7.

Division 6 – Classification
22 Classification of prisoners
(1) A prisoner’s classification—
(a)includes decisions about a prisoner’s security rating, placement and sentence plan; and
(b)may include reasons for decisions made under paragraph (a), directions as to future placement reviews and conditions applicable to the decision.

(2)Subject to this Division, a prisoner may be given one of the following security ratings—
(a)       high security;
(b)       maximum security;
(c)       medium security;
(d)      minimum security.

23       Sentence management panels
(1) There are to be one or more sentence management panels to carry out the functions of—
(a)       prisoner classification;
(b)       developing a sentence plan for each prisoner; and
(c)       determining the placement of each prisoner.
(2)The Secretary may set rules for the composition of the panels as he or she thinks necessary for the proper functioning of the panels.
(3)The Secretary may appoint members to the sentence management panels and may determine the terms and conditions of placement.

(4) The panels must—
(a)meet with such frequency as is determined by the Secretary; and
(b)conduct their procedures as determined by the Secretary; and
(c)establish and maintain the records determined by the Secretary.

(5) The Secretary may at any time—
(a)carry out the functions of a sentence management panel referred to in subregulation (1); or
(b)vary any decision made by a sentence management panel in relation to a prisoner’s classification.

24       Review and assessment committees[33]
[33]Regulation 24 is included for completeness.
(1) In each prison there is to be one or more review and assessment committee to carry out the functions of—
(a)       overseeing the case management of prisoners; and
(b)       reviewing prisoners’ classification; and
(c)       considering prisoners’ access to programmes; and
(d)      monitoring prisoners’ welfare.
(2)Subject to any rules determined by the Secretary, a review and assessment committee may vary the classification of a prisoner or make recommendations to a sentence management panel regarding the classification of a prisoner.
(3)The Secretary may set rules for the composition of review and assessment committees as he or she thinks necessary for the proper function of the committees.
(4)The Secretary may appoint members to the review and assessment committees and may determine the terms and conditions of appointment.

(5) Review and assessment committees must—
(a)meet with such frequency as is determined by the Secretary; and
(b)conduct their procedures as determined by the Secretary; and
(c)establish and maintain the records determined by the Secretary.

(6)The Secretary or a sentence management panel may at any time vary the classification of a prisoner by a review and assessment committee.

25 Determination of classification
When determining or varying a prisoner’s classification, a sentence management panel, a review and assessment committee, or the Secretary must consider the risk the prisoner presents to prison security, the community, himself, herself or any other person, having regard to any one or more of the following—
(a)the nature of the offence for which the prisoner has been charged or convicted;
(b)the risk of the prisoner escaping or attempting to escape, from custody;
(c)the risk of the prisoner committing a further offence and the impact the commission of the further offence is likely to have on the community;
(d)any risk the prisoner poses to prison management, security and good order;
(e)any risk the prisoner poses to the welfare of himself or herself and any other person;
(f)the length of the prisoner’s sentence or, if the prisoner is awaiting trial, the maximum sentence applicable to the offences in respect of which the prisoner has been charged;
(g)any other matter considered relevant to prison management, security and good order and the safe custody and welfare of the prisoner.

Division 7 – Placement
26 Determination of placement
When determining or varying a prisoner’s placement and developing a sentence plan, a sentence management panel or the Secretary may consider and assess the following factors—
(a)the prisoner’s security rating and relevant risk factors, including sentence length, and risk of escape;
(b)the programmes and other processes the prisoner requires to lower the risk of committing a further offence;
(c)any risk the prisoner poses to the welfare of himself or herself or any other person;

(d)      any drug and alcohol use and treatment;
(e)       any prison or other relevant institution history;
(f)       any medical or psychiatric condition;
(g)       any physical limitations or disability;
(h)      cultural background;
(i)        any relevant family issues;
(j)        where known, any sentencing remarks;

(k)any transitional requirements for the prisoner to re-enter the community, if appropriate;
(l)any other matter considered relevant to prison management, security and good order and the safe custody and welfare of the prisoner.

In 2011, Mr Knight sought leave once again to bring a proceeding by way of judicial review alleging that no sentence plan had been formulated for him. This time, though, he was able to rely on the “right to be classified” created by the combined operation of s 47(1)(l) of the Act and Divs 6 and 7 of the Corrections Regulations 2009. On 24 June 2011 Emerton J granted leave: see Knight v Hastings.[34] Although a sentence management panel (the Major Offenders Review Panel) had considered Mr Knight’s position on 29 November 2010, Emerton J observed that what was involved in a classification review and what was required in respect of the content of a sentence management plan as a result of the new regulations remained to be authoritatively determined. Her Honour did not consider that the proposed proceeding was foredoomed to fail. Nor did her Honour consider that the proceeding could be characterised as unjustifiably vexatious and oppressive on the footing that Mr Knight was seeking to litigate a case that had previously been litigated. Her Honour observed that the 2009 regulations were relatively new, and that they imposed “particular obligations in relation to the preparation of sentence management plans for prisoners”.[35]
[34][2011] VSC 332.
[35][Ibid, [6]–[7].

Mr Knight then commenced a proceeding pursuant to the leave granted by Emerton J. It was heard and determined by Williams J in 2012: see Knight v Hastings.[36]
[36][2012] VSC 203.

The judgment of Williams J reveals many similarities between the claim which her Honour heard and determined and the proposed proceeding for which Mr Knight now seeks leave.

As now, the claim before Williams J was for mandamus. Mr Knight was located at Port Phillip Prison.[37] He was classified as an “A2 Maximum Security” prisoner. He was also classified as a “Major Offender” and was therefore supervised by the Major Offenders Unit within the prison system. “Major Offenders” included prisoners who were considered to be dangerous or to represent a high risk, as well as prisoners who had a high public profile.[38] Mr Knight sought from Williams J an order requiring the prison authorities to review his classification, placement and security rating and to consider him for a placement in a medium security prison and to formulate a sentence plan for him. Mr Knight claimed that the provisions of the Act and regulations referred to above imposed a positive statutory duty on the prison authorities to review his classification annually and to develop a sentence plan for him and he contended that the decision of the Major Offenders Review Panel of 29 November 2010 did not meet the relevant statutory obligations.
[37]He remained at Port Philip Prison during the period relevant to the present application.
[38][2012] VSC 203, [2]. According to Mr Knight, the 2012 version of the Sentence Management Manual of Corrections Victoria removed the ‘high profile’ prisoner category, but Mr Knight was still listed as a Special Category, Major Offender: see Mr Knight’s written submissions filed 7 August 2013, [27]-[34].

Mr Hastings (the then Commissioner of Corrections Victoria) conceded before Williams J that the combined effect of reg 23 of the 2009 regulations and s 47(1)(l) of the Act was to impose a duty on a sentence management panel to have a sentence plan for a prisoner.[39] Likewise, in the present case, Mr Money accepts that the Act and regulations together impose a duty on a sentence management panel to have a sentence plan for a prisoner, and, as part of the annual review of classification required by s 47(1)(l) of the Act, to review that plan annually.[40]
[39][2012] VSC 203, [8].
[40]Mr Money’s written submissions filed 11 April 2013, [22].

Before Williams J, Mr Knight cited various parts of Corrections Victoria’s Sentence Management Manual (Version 024/07, dated 4 December 2007) in support of his arguments. He did the same before me. In addition, before me, Mr Knight pointed out that the Sentence Management Manual had been updated in 2012 and he claimed that he had not had full access to the 2012 version. I gave him leave to file post hearing submissions by reference to anything new and significant in the 2012 version of the Sentence Management Manual.

Williams J noted that the submissions made by Mr Knight in reliance on the 2007 Sentence Management Manual were detailed; and that she had considered all of them, but would only mention some.

Her Honour mentioned that Mr Knight had highlighted general statements of philosophy and policy to the effect that it was desirable to enable prisoners to work their way through the security levels down to the least restrictive environment possible.[41]
[41][2012] VSC 203, [12].

It can be safely assumed that, before Williams J, Mr Knight relied, as he did before me, on a statement said to be contained in the 2007 version of the Sentence Management Manual to the effect that sentence plans are designed to:

·ensure that the prisoner is managed in a consistent and coordinated manner throughout the sentence;
·identify and clearly document the prisoner’s needs, and broad strategies and interventions required to meet those needs;
·provide a basis for the prison location to undertake further assessment and develop a Local Management Plan for each prisoner;
·encourage the prisoner to take responsibility for the constructive use of his/her time in custody; and
·facilitate ongoing regular reviews and update of the plan and achievement toward objectives.[42]

[42]See Mr Knight’s written submissions filed 7 August 2013, [35].

A very similar list is said to be contained in a document called the Corrections Commissioner’s Correctional Management Standards for Men’s Prisons in Victoria (April 2008) which, it can again be safely assumed, Mr Knight relied upon before Williams J, as he did before me. That list includes one additional point about sentence plans, namely that they are designed to “ensure that the level of services and program need is matched to level of risk (including risk of re-offending, escape, self-harm)”.[43]
[43]Ibid, [43].

Mr Knight further argued before Williams J, as he argued before me,[44] that the required contents of a sentence plan could also be discerned, at least in part, from a particular passage in the 2007 Sentence Management Manual which Williams J set out verbatim in her Honour’s judgment,[45] and which Mr Knight again quoted verbatim both in his affidavit and in his submissions in support of his application before me. The particular passage indicates that, as at 2007 at least, the sentence management process was based on a two tier system. There was a central Sentence Management Unit; and at each prison location there was a multi-disciplinary Review and Assessment Committee. It seems that regs 23 and 24 of the 2009 regulations reflect that pre-existing dichotomy.
[44]Ibid, [20].
[45][2012] VSC 203, [13].

However, it is another question whether those or any other circumstances make the Sentence Management Manual or the Correctional Management Standards an available source of guidance as to the meaning of the relevant regulations. Before me, Mr Knight pointed to no statutory provision, legal principle or decided authority that would justify resort to the Sentence Management Manual or the Correctional Management Standards for that purpose.[46]
[46]Cf Interpretation of Legislation Act 1984 s 35; Pearce & Geddes, Statutory Interpretation in Australia (8^th ed, 2014), Ch 3, especially at [3.21]-[3.23], [3.26].

In any event, to the extent (if any) that it is legitimate to have regard to the Sentence Management Manual or the Correctional Management Standards, those documents do not support Mr Knight’s arguments. The list of things set out above that sentence plans are said to be designed to achieve is not narrowly prescriptive. For example, the list refers to ‘broad’ strategies and interventions to meet prisoners’ needs. Similarly, the passage from the Sentence Management Manual relied upon by Mr Knight relating to the two-tier system would indicate, if anything, that the concept of a “sentence plan” is a broad and flexible one, just as Williams J ultimately held. The passage in question indicates that the development of a sentence plan was to occur at the central (Sentence Management Unit) level and that it was to include “the determination of initial security ratings, identification of broad program needs, and determination of placement locations”.[47]
[47]My emphasis.

Williams J noted that Mr Knight had referred to additional statements of principle and policy in other published documents relating to correctional standards in Australia. Her Honour summarised those documents as referring generally to such matters as the aims of correctional programs and the fact that classification should be at the lowest level of security possible, taking account of individual and group needs and the provision of safe custody.[48] Later, Mr Knight referred to those same documents and other similar published documents in his affidavit and submissions before me. Again, it is very doubtful that any of those documents could properly be considered for the purpose of interpreting the 2009 regulations. Further, the documents are general in nature, and do not purport to dictate what the correctional authorities must do in any particular kind of case.
[48][2012] VSC 203, [15].

Williams J went on to summarise Mr Knight’s own sentence management history as follows:

[16]As a Major Offender, Mr Knight has his classification reviewed by a Sentence Management Panel at least twice a year. Corrections Victoria records show him as having been the subject of over 220 reported sentence management panel meetings since August 1987. His classification was recently reviewed on 21 January 2009, 19 May 2009, 26 August 2009, 17 February 2010, 21 May 2010, 17 August 2010, 29 November 2010 and, again, on 24 November 2011. The November 2010 and 2011 reviews were annual reviews.

Williams J then turned in more detail to the 2010 annual review and subsequent events. It is desirable that I set out verbatim the factual findings made by Williams J in this regard for two related reasons. First, the sentence management processes described by her Honour are closely linked to the sentence management processes of 2012 which Mr Knight criticises as deficient in comparison with the statutory requirements. Second, the factual findings of Williams J are important to an understanding of her Honour’s determinations as to the meaning of the expression “sentence plan” in the regulations and as to what may or may not satisfy the statutory obligations.

The description by Williams J of the 2010 annual review and the subsequent events is as follows:

[22]On 14 October 2010, Mr Knight wrote to Mr Trevor Pickering, General Manager of the Major Offenders Unit, listing topics for the impending annual review, as follows:
(a)My Sentence Plan for the next 3 ½ years (i.e. up to my EED);
(b)My Security Rating (lowering it from A2 to B or to C1);
(c)My participation in the Corrections Administration Permits & Rehabilitation & Transition Permit Program; &
(d)Any programs designed to address offending behaviour that it is recommended that I undergo.

He also referred to the issue of the progress of his application for access to a personal “in cell” computer.
[23]The sentence management panel (the Major Offenders Review Panel) met for the annual review on 29 November 2010. Mr Money, as Assistant Commissioner, Offender Management Services, Corrections Victoria, chaired the meeting. Mr Money is responsible for the security classification of prisoners and where they are accommodated through sentence management and Major Offenders Units. The two other panel members were Dennis Barnes, the Acting Senior Assistant Manager of the Major Offenders Unit and Michelle Hosking, that unit’s Acting Manager.
[24]The Major Offenders Unit’s senior clinician, Ms Nicole Sakellaridis, Tim Hargrave, a Port Phillip Prison Supervisor, and Corrections Victoria Project Officer, Patricia Von Gunten, were present to assist. Ms Von Gunten recorded the major points of the discussion into the Prison Information Management System (‘PIMS’). Mr Knight does not contest the accuracy of the PIMS record and exhibits a copy of it to his 11 January 2011 affidavit. Ex JK 104.
[25]The panel began by noting various aspects of Mr Knight’s time in the Waaksembyd unit at Port Phillip Prison: his positive interaction with staff and fellow prisoners; his work as a floor billet; his physical health; his successful studies; his recent disciplinary history; his participation in counselling with Ms Sakellaridis; and his engagement with Kangan TAFE and other educational programs.
[26]The PIMS notes record that Mr Knight ‘presented in an agitated and aggressive manner‘. He queried his maximum security rating, when he had previously been granted a medium security rating in 1999. He asserted that he should have a minimum security rating. He was told that progression to lower security ratings was not determined simply on the basis of the passage of time, but that it rather depended on genuine progress with treatment programs. Decisions about his progress would be based on clinical advice. Mr Knight raised his computer application and was told that it was with the Major Offenders Review Panel. Mr Knight then indicated that he would not participate in any more programs or education and would concentrate instead on litigation: apparently against Corrections Victoria.
[27]Mr Money raised Mr Knight’s sentence plan. Mr Knight responded that he did not have one. Mr Money then advised that the sentence plan was for him to continue a treatment readiness program and for an advice from the Major Offenders Unit senior clinician to be obtained. Mr Knight’s classification would be considered in light of reports submitted. Meanwhile, he would remain a Maximum Security rated prisoner at Port Phillip Prison and continue with a treatment readiness program. Mr Knight is recorded as then having left the room.
[28]After his departure Mr Money summarised the review. He first noted the similarity between Mr Knight’s presentation at each of the 2010 and 2009 annual reviews, but stated that his level of agitation appeared to have heightened. He then stated that the sentence plan established in 2009 remained in place; the Major Offenders Unit senior clinician was still conducting a treatment readiness program which was expected to finish in about April 2011. At that stage, Mr Knight’s sentence management plan would require review, in accordance with the senior clinician’s advice. He concluded that Mr Knight’s ‘declared plan of litigating his way to parole’ seemed unchanged and that he remained ‘totally resentful to any attempts to demonstrate insight or take responsibility for his situation.’ He concluded that Mr Knight would require ‘a considerable level of monitoring and supervision’, given his state of mind and agitation.
[29]Whilst Mr Knight’s application relates to his 2010 review, it is relevant that there was another annual review on 24 November 2011. By that time, at the end of February 2011, Ms Sakellaridis had completed the 12 months of individual counselling sessions with Mr Knight, to assess and report on his readiness for treatment. She had assessed him as unready for further treatment and considered it appropriate to obtain an independent expert’s opinion.
[30]In May 2011, Mr Money had requested a report from Professor Paul Mullen as to Mr Knight’s management and the appropriate treatment for him. Professor Mullen had also been engaged by the Adult Parole Board to prepare a report for it in relation to Mr Knight. Mr Money was subsequently informed that Professor Mullen had completed the assessment and had recommended that Mr Knight be assessed by Professor James Ogloff.
[31]Mr Money thought it possible that the Parole Board might not provide Corrections Victoria with the reports. So, in February 2012, he decided to commission separate reports from Dr Mullen and Professor Ogloff in relation to Mr Knight’s management and treatment. Mr Knight agreed to participate in the process.
[32]Professor Ogloff’s report was not available to the panel which conducted Mr Knight’s 24 November 2011 review. During the review process which culminated in that meeting, Mr Money explained to Mr Knight the matters which the panel was considering in relation to his sentence plan. They included the panel contemplating a medium security rating for Mr Knight in the future, if that were to be consistent with the recommendations of the experts. The anticipated expert advice would also provide guidance for his future treatment. If there was likely to be a delay, the panel would review the situation.
[33]The PIMS record of the 24 November 2011 annual review meeting shows that Mr Knight responded by stating that he did not wish to be placed in a medium security prison, preferring to stay at Port Phillip Prison to participate in a High Intensity Violence Intervention Program from which he felt he was being blocked. Mr Money told him that that the Mullen and Ogloff reports were required for his screening for that program. Mr Knight is reported to have then disclosed to the panel that he had deliberately sabotaged his individual counselling, in order to ensure that an independent assessment was recommended. The PIMS notes record that Mr Knight indicated his intention to be ‘relentless in his litigation activities’ and that he intended to be released in 2014. (Mr Knight’s earliest date for eligibility for release on parole is noted as 8 May 2014.)

Once again, because of the similarities and links between the proceeding before Williams J and the application for leave before me, it is desirable to set out verbatim the balance of the judgment of Williams J, comprising her Honour’s summary of the submissions made to her together with her Honour’s conclusion and her supporting reasoning. Williams J said:

Submissions
[34]Mr Knight submits that at his annual reviews in 1999, 2000 and 2001, the panels’ decisions could be characterised as general sentence plans which involved his progression to a medium security location. Since 2001, his reviews have brought about no change and he remains at a maximum security location.
[35]Mr Knight says that the 2010 review was not ‘a proper genuine and realistic consideration of [his] sentence management’. The outcome of the decision was a foregone conclusion, in the context of Corrections Victoria’s apparent policy of ‘get nothing, go nowhere’ with regard to him. The decision to tie his progression to assessment indicates bad faith.
[36]He also distinguishes his previous reviews from that conducted in November 2011, on the basis that they did not involve reference to the need for expert reports. He contends that he is being treated differently from the vast majority of other prisoners and that the delaying of his progression to a lower security rating by requiring expert assessment is another indicator of bad faith. He argues that mandamus should be available as the impugned decision was arbitrary and unreasonable.
[37]The Commissioner responds that the sentence plan is a practical flexible tool of management. See: Knight v Anderson [2007] VSC 278; (2007) 16 VR 532, 535 [14] (Bell J). A sentence plan must be capable of changing at short notice in response to changing circumstances. Mr Knight’s sentence plan was summarised in the PIMS notes of the 2010 annual review in a way which indicated that it was under active consideration. He was to continue the treatment readiness sessions and then advice would be obtained from Ms Sakellaridis, when reports had been submitted. Meanwhile, he was to remain at Port Phillip Prison.

[38]The Commissioner argues that there is no basis on which it could be said that the sentence management plan advised by the panel did not contain what the panel was required to include or that it so lacked content that it could not be called a sentence plan within the meaning of the 2009 Regulations. The plan had been arrived at in accordance with the statutory scheme and the Court had no jurisdiction to direct its contents.
[39]In summary, the Commissioner submits, he discharged all his relevant statutory duties under the Act and the 2009 Regulations in relation to Mr Knight’s classification. It was reviewed annually by sentence management panels, which considered the issues relating to risk, as required by reg 25, and made decisions in relation to his sentence plan, including a decision to obtain advice with regard to his future treatment.
[40]In any event, Mr Knight’s classification has already been reviewed again on 24 November 2011 and the evidence indicates that it remains under continual review and that expert reports as to his future management and treatment have been sought. An order in the nature of mandamus for a review of the classification would be premature and futile in the circumstances and ought not be made.

Conclusion
[41]I am not persuaded to make the order sought by Mr Knight.
[42]He has not satisfied me that the Commissioner actually or constructively failed on 29 November 2010 to discharge his statutory duty to review his classification, his placement or his security rating or to develop a sentence plan for him.
[43]The PIMS entries record the 2010 annual review. Mr Knight raises no issue as to their accuracy. The entries show that the panel canvassed the issues of the risk Mr Knight presented and his future classification and placement, in the context of his offence, his then current behaviour, his attitude, his prison work, his educational activities, his physical health, his contact with family and friends, his participation in prison programs, the pending advice of Ms Sakellaridis as to his readiness for treatment programs and his state of mind and demeanour, as the panel perceived it to be.
[44]I am not persuaded that, in so far as the regulations indicate the nature of a sentence plan, the panel failed to comply with its duty to provide or review Mr Knight’s sentence plan in 2010, as he contends. I am not satisfied that the panel failed to comply with its obligation under reg 25 to consider the risk posed by Mr Knight with reference to one or more of the considerations it lists and to which it might have had regard. Nor am I persuaded that the panel failed to comply with any duty under reg 26 when it was determining Mr Knight’s placement and developing a sentence plan for him for the future.
[45]As I have already said, the Manual states that reduction of a security rating is contingent upon such matters as prisoner conduct, the passage of time and the satisfactory compliance with a sentence plan. I am not persuaded that the panel failed to take those matters into account in 2010. Indeed, the PIMS record would suggest that it did.
[46]Additionally, I am not persuaded by Mr Knight’s criticisms of the decisions made at the 2010 annual review, and of the process itself, that the Commissioner acted in bad faith, for an improper purpose or capriciously, as alleged. In all the circumstances, it was quite proper for the panel to have awaited the report from Ms Sakellaridis, after twelve months of individual counselling, and then to have decided to await the recommended independent expert reports relating to Mr Knight’s future management and readiness for treatment. Mr Knight also has a copy of the PIMS report which sets out Mr Money’s description of the sentence plan.
[47]The sentence plan is a practical management tool and must be flexible to take account of changing circumstances. There is, and has been, ongoing review of Mr Knight’s sentence plan. A further annual review took place on 24 November 2011 where the sentence management panel stated that it would consider his progression to medium security rating on the basis of anticipated expert reports.
[48]In the circumstances, even if I had taken the view that the Commissioner had failed to carry out his duty in the manner alleged, I would have refused the order sought on discretionary grounds. It would have been inappropriate and even futile to make such an order, in light of the sentence management panel’s continuing consideration of Mr Knight’s sentence plan as to his classification, placement and future treatment at reviews after the 2010 annual review and, in particular, at the annual review in 2011.
[49]I consider many of Mr Knight’s criticisms of the 2010 annual review to be related to the substance of the decision made by the sentence management panel in the exercise of its duty. Indeed, he effectively submits that it should have formulated a different sentence plan, that his security classification should be reduced and that his placement should reflect that reduction. The Court, however, has no jurisdiction to make an order in the nature of mandamus as to the way in which the Commissioner should perform his duty.
[50]For all these reasons, the application should be dismissed.

It is clear that Williams J accepted the submissions of the Commissioner as summarised in paragraph 37 of the judgment, including that a sentence plan is a practical flexible tool of management and that it must be capable of being changed at short notice in response to changing circumstances. Her Honour noted that Mr Knight’s sentence plan was under active consideration at the 2010 annual review; that Mr Knight was to continue his treatment readiness sessions; that advice would then be obtained from Ms Sakellaridis (the Major Offenders Unit’s senior clinician); that Mr Knight’s classification would be reconsidered after reports had been obtained; and that, meanwhile, Mr Knight was to remain at Port Phillip Prison. Plainly, this was considered by her Honour to be sufficient to amount to a sentence plan within the meaning of the legislation.[49]
[49]See also [2012] VSC 203, [27], [44] and [47].

After Williams J published her judgment, the Commissioner applied for costs. Mr Knight opposed the application. He argued, among other things, that the proceeding had been brought in the public interest and amounted to a test case in relation to the previously “untested” 2009 regulations.[50] He relied upon the statements made by Emerton J when granting leave, to the effect that it remained to be authoritatively determined what was involved in a classification review and a sentence management plan under the regulations.[51] Before Williams J, the Commissioner responded that the proceedings were neither a “public interest” case nor a test case. He submitted that not every case relating to the Act or the regulations involved the public interest in the relevant sense. According to the Commissioner, Mr Knight’s case did not test the regulations. Rather, Mr Knight had unsuccessfully argued that he had had no sentence plan and that he should have had a different security classification and sentence plan.[52]
[50]Knight v Hastings (No 2) [2012] VSC 423, [7].
[51][2012] VSC 423, [8].
[52]Ibid, [10].

Williams J granted the Commissioner’s application for costs. In relation to the arguments just mentioned, Williams J said:[53]

I agree with the Commissioner that the application did not involve any meaningful testing of the requirements of the regulations. Further, even if the proceeding concerned the public interest, its major focus was on Mr Knight’s own particular situation. All in all, I am not satisfied that there were special circumstances justifying a departure from the general rule as to costs on the grounds that the proceeding was a test case or one involving the public interest.

[53]Ibid, [12].

In dealing with another of Mr Knight’s arguments based on his status as a prisoner, Williams J said, among other things:[54]

It is significant in this case that it was held that it would have been inappropriate and futile to grant the relief sought and that the Court lacked jurisdiction to grant the relief which Mr Knight effectively sought.

[54]Ibid, [14]. Citations omitted.

Mr Knight did not seek leave to appeal against the substantive judgment of Williams J. However, he did seek leave to appeal against her Honour’s order as to costs. Neave JA and Hargrave AJA rejected the application.[55] So far as presently relevant, their Honours said:[56]

Ground 3 also fails. Her Honour found that the application did not meaningfully test the requirements of the regulations. We agree. As her Honour observed, the applicant’s real complaint was that he should have been given a different sentence management plan and that his security classification should be reduced. The Court has no jurisdiction to undertake a merits review of the Commissioner’s decision.

[55]Knight v Hastings [2012] VSCA 315.

[56]Ibid, [19].

Mr Knight urged me to treat the judgment of Williams J as a “lost opportunity” to determine authoritatively the meaning and scope of the statutory obligation to have a sentence plan for each prisoner, and he invited me not to follow it. That submission is hard to reconcile with Mr Knight’s contention in the costs hearings before Williams J and before the Court of Appeal that the case was a test case brought in the public interest. It is true that neither Williams J nor the Court of Appeal accepted that it was a public interest case or a test case, but that does not mean that it was a lost opportunity. The judgment of Williams J produced at least one clear ruling for the future, namely that, even under the new statutory regime, a “sentence plan” remains a “practical management tool and must be flexible to take account of changing circumstances”.[57] The facts of the case before Williams J (as related by her Honour) illustrate the extent and degree of the permissible flexibility of this “practical management tool”. A trial judge would not depart from the ruling of Williams J unless convinced that it was “clearly wrong”.[58] Still less would there be any departure in circumstances where her Honour’s ruling has had the implicit endorsement of Neave JA and Hargrave AJA in their Honour’s decision on the costs aspect. In my view, it is not arguable that the ruling of Williams J is clearly wrong. Indeed, I consider that it is plainly correct. Accordingly, I consider that Mr Knight’s contention that her Honour’s ruling should not be followed is foredoomed to fail.
[57][2012] VSC 203, [47].
[58]La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201, 204 (Burchett J); Engebretson v Bartlett [2007] VSC 163, [63] (Bell J); Portbury Development Co Pty Ltd v Ottedin Investments Pty Ltd [2014] VSC 57, [71] (Garde J); Lew Footwear Holdings Pty Ltd v Madden International Ltd [2014] VSC 320, [122] (Elliott J).

Applying the judgment of Williams J to the relevant subsequent events as revealed by the (uncontroversial) evidence in the present case (to which I am about to come), it is plain beyond argument that there was a “sentence plan” in place for Mr Knight as an outcome of the impugned meeting of the sentence management panel of 6 December 2012, just as there had been such a plan in place at the corresponding points in 2010 and 2011. Insofar as Mr Knight would wish to claim that there was no “sentence plan” in place because the panel had not given “proper genuine and realistic consideration” to his case, it is likewise obvious that such a claim would be bound to fail.[59]
[59]Compare Mr Knight’s written submissions filed 7 August 2013 [45], citing Khan v Minister for Immigration & Ethnic Affairs (1987) 14 ALD 291, 292 (Gummow J).

The meeting of 6 December 2012 cannot be viewed in isolation. It was only a part of the very long history of the management of Mr Knight’s sentence. In addition to the events described in the judgment of Williams J, important context is supplied by a meeting of a sentence management panel chaired by Mr Money which took place on 30 August 2012.[60] The unchallenged PIMS record of the August 2012 meeting shows that the management of Mr Knight’s sentence was considered in great detail at that meeting. By then, the reports which had been commissioned by Corrections Victoria from Professor Mullen and Professor Ogloff had been received. Copies of the reports are exhibited to Mr Knight’s affidavit of 22 January 2013. A copy of each report had been provided to Mr Knight in advance of the meeting.[61] Each report is detailed and comprehensive.
[60]The evidence relating to the meetings of August and December 2012 is identified in Mr Money’s written submissions filed 11 April 2013, [24]. It includes two lengthy paragraphs of Mr Knight’s own affidavit of 22 January 2013, namely [72] and [74], which deal with the 30 August meeting and the 6 December meeting respectively.
[61]Affidavit of Mr Money filed 10 April 2013, [11].

The meeting of the sentence management panel on 30 August 2012 is described by Mr Money in his unchallenged affidavit as having been “a major review which resulted in a change to Mr Knight’s security classification and was in that sense a more significant review of his classification and placement than that which took place in December 2012”.[62] The panel was comprised of six members, including Mr Money (as chair). Present also at the meeting were two clinicians to give advice to the panel and a project officer to take notes.[63] Each member of the panel had been provided with the Ogloff report and the Mullen report. Mr Knight himself was also present at the meeting.
[62]Ibid, [13].
[63]Ibid, [14].

At the meeting, Mr Knight confirmed that he had received and considered the reports. Mr Money referred to various aspects which he considered relevant to Mr Knight’s sentence management, including the observations of Professor Ogloff in relation to a gradual release process which would involve moves to lower levels of security. Mr Money also referred to the observations of both Professors in relation to some of Mr Knight’s traits which might be problematic in less controlled prison environments. Mr Money told Mr Knight that the panel considered it appropriate to change his security rating to a medium security rating and that as a medium security prisoner Mr Knight would be moved to Marngoneet Prison where he could access treatment programs. Marngoneet Prison is the specialist treatment facility in the Victorian prison system. It is also a campus style facility and is less controlled and directed than a maximum security prison.

However, Mr Knight told the panel at the August meeting that he was only interested in a minimum security placement.[64] In the discussion which followed, the panel accepted that Mr Knight would not have to move to Marngoneet immediately, as there was a preparatory treatment program that he could participate in at Port Phillip Prison, in addition to maintaining his current employment, education and recreation activities. The panel had already noted, at the outset of the meeting, that Mr Knight was working as a unit induction billet, that he regularly attended the gym, that he was on the prisoner representative committee and that he had an organisational role in the prisoners’ leisure and recreation program. However, the panel indicated that a medium security placement such as Marngoneet remained a possibility as Mr Knight needed in future to be tested in a less controlled environment.[65]
[64]Ibid, [18].
[65]Ibid, [19].

Mr Money is a very experienced and senior officer of Corrections Victoria.[66] He deposes (as he did before Williams J) that sentence plans are dynamic and must be flexible enough to adapt to the constantly changing circumstances of prisoners and their prison environment. However, he says, it is possible to identify the sentence plan for Mr Knight as at 30 August 2012 as including the following key elements:

·Mr Knight’s security rating would be lowered from maximum security to medium security;
·He would, in the short term, remain at Port Phillip Prison as a medium security rated prisoner, in view of his opposition to being moved to the medium security Marngoneet Prison;
·He would undergo an offence related treatment program which was being developed and would be offered at Port Phillip Prison, which would assist to prepare him for more intense treatment;
·He would continue to engage in the range of meaningful activity that he was currently engaged in, including education;
·He would be considered on an ongoing basis for an eventual move to a medium security prison.

[66]Ibid, [1]-[2].

As mentioned above, Mr Knight had been classified as a major offender. As such, Mr Knight also fell within the purview of a panel called the High Risk Management Advisory Panel (HRMAP), which had been formed in April 2012 to provide advice to the Commissioner for Corrections in relation to certain offenders whose management within a prison posed specific risks. HRMAP was also authorised to advise on any other matter which the Assistant Commissioner, Sentence Management Branch, of Corrections Victoria wished to refer to it. The members of HRMAP were the Deputy Commissioner, Offender Management, Corrections Victoria; the Deputy Commissioner, Operations, Corrections Victoria; the Assistant Commissioner, Crime, Victoria Police, and an independent member (who was at the relevant time a retired judge of the Supreme Court of Victoria, Professor Robert Brooking).[67]
[67]Ibid, [6].

Following the meeting of the sentence management panel on 30 August 2012, the views of HRMAP were sought in relation to the outcome of the meeting, to assist the Commissioner for Corrections in determining whether there was any need for him to exercise his delegated powers under reg 23(5) of the Corrections Regulations 2009 so as to vary that outcome. Mr Money deposes that HRMAP supported what he describes as “the panel’s sentence plan and reduction in classification”. The Acting Commissioner was provided with the Mullen and Ogloff reports, and the advice of HRMAP.[68]
[68]Ibid, [22].

The Acting Commissioner approved and did not vary the decision of the sentence management panel.[69]
[69]Ibid, [23].

On 2 October 2012, Mr Knight commenced a skills based relationships and emotional development program dubbed the PSYCH ED program, being a program of 14 sessions scheduled to continue until 13 December 2012. Mr Knight had almost completed this program by the time of the impugned meeting of 6 December 2012.

As indicated above, the meeting of 6 December 2012 was a meeting of a sentence management panel appointed under reg 23 of the Corrections Regulations 2009. On this occasion, the sentence management panel had seven members. Mr Money was again the chairman. Two of the other members had also been members of the August 2012 panel. Once again, Mr Knight was present in person.

Mr Knight has not challenged the account of the meeting of 6 December 2012 which is given by Mr Money in his affidavit and which is supported by the PIMS record.

The meeting was conducted at Port Phillip Prison. During the discussion, the panel noted that Mr Knight’s security rating had been lowered to B* medium.[70] The panel also noted that Mr Knight was participating in the PSYCH ED program, and that he continued to be engaged in a range of other activities including attending the gym, education, and acting as a unit induction billet. Mr Knight had also engaged in some short term one on one counselling regarding alcohol abuse.[71] Mr Money told Mr Knight that he was willing to discuss questions which had been raised by Mr Knight, by letter, in relation to Mr Knight’s placement and classification and as to whether his transfer to Marngoneet had been approved. Mr Knight then stated that he wanted to be considered for transfer to Ararat Prison (which is a prison exclusively for protection prisoners), Fulham Correctional Centre (a mainstream medium security prison), or Beechworth Correctional Centre or Dhurringile Prison, which are both minimum security prisons, but also stated that he should be in minimum security. He also asked, however, what the panel’s plan for him was beyond Marngoneet. He talked about the Adult Parole Board and he expressed a view that he had to be paroled in 2014 or he never would be.
[70]An asterisk indicates that the prisoner’s security rating cannot be lowered without the approval of the Sentence Management Branch of Corrections Victoria: see Corrections Victoria, Sentence Management Manual, AC3 (dated 11 June 2014), p 13.
[71]Mr Knight had consumed alcohol shortly before the time of his offending in 1987.

· Mr Knight did not have less than 12 months to serve before reaching his earliest eligibility date. That was a mandatory requirement before a transfer could occur: s 56AC(2)(b).

It was further submitted on behalf of Mr Money that it was important to consider that s 56AC involved the Secretary’s own satisfaction of the very significant matters of public interest and safety referred to in s 56AC(2)(a). Reference was made to the observations of Osborn J in relation to the grant of custodial community permits in Knight v Adult Parole Board and Secretary, Department of Justice.[112] The Secretary is to remain the legal custodian of the prisoner once transferred: s 6A. This was an onerous responsibility which would not likely be found to have been affected by unreasonableness.[113] It was submitted that, for those reasons, the decision was incapable of satisfying the test for unreasonableness, and that this ground was also foredoomed to fail.
[112][2012] VSC 23, [22].
[113]Citing Knight v Wise [2012] VSC 506 (Kyrou J), [50].

Further, it was mentioned in the written submissions that Mr Knight in his affidavit had raised the issue of community custodial permits. The relevance of this was unclear in the context of Mr Knight’s request to be transferred to the JLTC. Other sections of the Corrections Act 1986 govern community custodial permits. Mr Knight currently had a separate application on foot to review a later decision of the Secretary refusing him such a permit.

In conclusion, it was submitted on behalf of Mr Money that the entirety of the proposed proceeding was foredoomed to fail and would therefore be an abuse of process and that the application for leave should therefore be dismissed.

When the matter came on before me on 16 August 2013, Mr Knight told me that he was not ready to proceed with this particular application. He acknowledged that an associate judge had previously directed that this and the “sentence plan” application be heard together, but Mr Knight said that it had simply not been possible for him to prepare to argue the “transition centre” application on that day. It seems that he had not been directed to file any written submissions in the matter. In any event, he had not done so. He applied for an adjournment of the hearing. In the end, after considerable discussion, it was agreed that counsel for Mr Money would speak to her written submissions and make such other submissions as she saw fit; that Mr Knight would essentially just listen to those submissions; and that Mr Knight would subsequently file written submissions in response. It was further agreed that counsel for Mr Money would be at liberty to file answering submissions.

When the hearing proceeded, counsel for Mr Money began by adopting her written submissions. She added that it was relevant and appropriate to take into account the attitude of the Parole Board, because the transition centre was very low security and was designed to assist a prisoner who was close to the time of release. It was agreed between the parties that there was only one transition centre in Victoria and that it was for men only.

Counsel pointed out that the expression “earliest possible release date of the prisoner” was not defined in the Act. She said that it did not necessarily mean the prisoner’s earliest eligibility date for parole. To that extent, a statement from the Parole Board might be all the more relevant.

It was noted that s 56AC does not provide for applications but rather for the Secretary to give directions by instrument for the transfer of prisoners. Counsel submitted that this might stand in the way of any grant of relief in the nature of mandamus. On the other hand, counsel accepted that this would not be a problem in relation to certiorari. The section was said to confer a discretion but not to impose any duty to transfer a prisoner. Counsel submitted that the section was more in the nature of a management tool for Corrections Victoria, rather than generating a capacity in prisoners to call for its exercise.

Counsel pointed out that the only other substantial references in the Act to a transition centre were contained in ss 4 and 11A. (There is also a cross-referencing definition in s 3). Section 4 is of a technical nature and is of no significance for the present case. Section 11A empowered the Governor-in-Council, by Order, to appoint any premises or place to be a transition centre. The name of a transition centre is to be the name given to it in the Order establishing it. An Order may state the maximum number of people that may reside in the transition centre at any one time. Otherwise, s 11A threw no particular light on the issues arising in the present case.

At the oral hearing, neither party had put the letter from the Parole Board into evidence. However, it was agreed that the letter should go in and it was included in the material subsequently forwarded to the Court.[114]
[114]A copy of the letter from the Adult Parole Board was attached to a letter from Mr Knight to the Court dated 27 August 2013 seeking an extension of time for the filing of his submissions.

Counsel for Mr Money further submitted that information from the Parole Board as to whether or not a person was likely to be paroled on a particular date (such as their earliest eligibility date) might appropriately be taken into account by the Secretary in considering the matters of the security and good order of the transition centre and the safety and welfare of the prisoner and members of the public pursuant to s 56AC(2)(a). If the Parole Board, with its relevant experience, was of the view that the person was unsuitable for release, that was information of potential relevance and significance in relation to the issues to be considered under s 56AC(2)(a).

Counsel referred to the fact that, in the document called the Commissioner’s Requirement – Preparation for release (May 2009), one of the factors stated is that the prisoner be suitable for placement in a minimum security community based facility. That made relevant Mr Money’s observation in his letter of 22 March 2013 that Mr Knight did not at that stage have a minimum security rating. Further, as Mr Money had pointed out in his affidavit, Mr Knight’s security rating had only been reduced from maximum security to medium security quite recently, namely on 14 November 2012.

The parties agreed that at the relevant time Mr Knight was accommodated in a maximum security facility, namely Port Phillip Prison.

Turning to the ground of unreasonableness, counsel submitted that, apart from some background references to eligibility as set out in the Sentence Management Manual, and references to the reports of Professors Mullen and Ogloff, there was nothing in Mr Knight’s material to elaborate on the contention of unreasonableness. Counsel reiterated what she had said in her written submissions about the absence of any basis for perceiving unreasonableness in Mr Money’s decision.

At the hearing, by leave, Mr Knight did make some preliminary oral submissions in reply to Ms Harris’ submission.

Under the rubric of irrelevant considerations, Mr Knight submitted that the attitude of the Adult Parole Board to a person’s prospects of obtaining parole was irrelevant to the correcitonal authorities. Corrections Victoria would still have a duty with respect to the welfare of the prisoner.

Alternatively, Mr Knight submitted, if it was relevant for Corrections Victoria to know that a person was not ready to be paroled, then that was not an excuse for Corrections to do nothing but, to the contrary, it should impel Corrections to speed up the process of getting the prisoner ready to be released on parole. That was the sense in which his second ground (failing to take into account a relevant consideration) should be understood. In this respect, Mr Knight asserted that there was a major difference between Professor Ogloff’s notion of “gradual reintegration” for Mr Knight and that of Corrections Victoria.

Mr Knight expressed concern that if nothing were done by way of transferring a prisoner to the transition centre in a timely way, the prisoner’s “window of opportunity” might close.

Mr Knight mentioned that the JLTC was a 25 bed facility and solely for male prisoners. By contrast, there were over 5000 prisoners currently in the Victorian prison system. Mr Knight said that he had not been to the JLTC, but understood that the prisoners sent there were largely mid-range, low profile, non-violent offenders such as drunk drivers. He asserted that these prisoners were the least in need of the facility.

Mr Knight asserted that to accept that the advice of the Parole Board was a relevant consideration could generate an element of “catch 22” for a prisoner. The Adult Parole Board could say to the prisoner that they would not make a decision about their parole until they had spent time in a minimum security location or transition centre. Then Corrections could say that they would not transfer the prisoner to a minimum security location or the transition centre because they had not been granted parole.

Mr Knight then claimed that the position of counsel for the Adult Parole Board in the case before Macaulay J was that no final decision as to parole had been made and that therefore no decision having legal consequences had been made. Mr Knight contended that, in this way, the authorities were trying to “have it both ways”.

Mr Knight’s outline of submissions was ultimately filed on 10 September 2013. The first seven paragraphs of the submission contained nothing new. In paragraph 8, Mr Knight submitted that a prisoner’s transfer to a transition centre is not dependent on decisions, recommendations, advice or documentation from the Adult Parole Board.

The next two paragraphs do no more than refer again to the terms of ss 11 and 56AC of the Corrections Act 1986.

Paragraph 11 contains an extract from the 2007 edition of the Sentence Management Manual containing a profile of the JLTC. This document contains a section on eligibility which had already been quoted in Mr Knight’s affidavit of 16 April 2013. The new submission noted that the 2012 version of the Sentence Management Manual contained no reference to the JLTC.

In paragraph 12, Mr Knight sets out an extract from the operating principles of Corrections Victoria’s Deputy Commissioner’s Instruction Number 3.14: Preparation for Release (formerly known as Director’s Instruction Number 3.14), as follows (reproducing Mr Knight’s emphasis):

OPERATING PRINCIPLES
Corrections Victoria recognises the need to adequately prepare prisoners for release so that they may have the opportunity to re-establish themselves in a positive manner and reduce the risk of re-offending. As a component of the Corrections Victoria Offender Management Framework, preparation for release commences at reception, forms part of ongoing prisoner case management, and is intensified pre-release.
This procedure details the pre-release period of a prisoner’s sentence. This pre-release period typically consists of the final six months of a prisoner’s sentence or part thereof — depending on sentence length. However, for long term prisoners with significant transitional needs, the pre-release period may be spread over the final twelve months of the prisoner’s sentence.
During this period, staff will be involved in developing and implementing release preparation support and information programs, and will support and encourage prisoners to take the necessary steps to prepare themselves for release.

In paragraph 13 of his written submission, Mr Knight notes that the effect of the Act is that a transfer to the JLTC can only “occur not less than three months, and not more than twelve months, before the earliest possible release date of the prisoner”. Mr Knight observes that the Act is silent as to what is to occur if the prisoner is granted parole with less than three months left to serve, or if he is granted parole after he passes his EED.

Paragraphs 14 and 15 contain references to the judgment of Holmes J in Barrow v The Chief Executive, Department of Corrective Services.[115] Mr Knight had already referred to this case in relation to the sentence plan application. I have already dealt with it in that context.[116]
[115][2002] QSC 168, [7]-[9].
[116]See para 20 above.

Paragraph 16 contains tendentious assertions criticising the way in which Corrections Victoria has managed Mr Knight over many past years. It also contains selective references to the reports of Professors Mullen and Ogloff. In any event, it has little or nothing to do with the legal merits of the proposed “transition centre” proceeding.

Paragraph 17 merely sets out ground 2(a) of the plaintiff’s originating motion.

Paragraph 18 reads as follows:

It is submitted that the APB’s decision is an irrelevant consideration as the plaintiff’s transfer to a transition centre is not dependent on a decision of the APB, but rather on the plaintiff’s EED. In the absence of a decision by the APB that the plaintiff will not be released on his EED, the defendant is bound to take the plaintiff’s EED as the relevant date vis a vis an application for a transfer to the JLTC. The APB’s position, as asserted in the proceeding Knight v Adult Parole Board (SCI 2012 04155), is that their decision of 29 June 2012 with respect to the plaintiff was limited to the plaintiff’s request for a tentative date for release on parole. Additionally, the Board asserted that their decision did not prevent the plaintiff from being released on his EED (see Knight v APB [2013] VSC 97).

Paragraph 19 of Mr Knight’s submissions reproduces proposed ground 2(b) of his originating motion.

Paragraph 20 of the written submission reads:

Alternatively, if the Court rejects Ground 2(a), it is submitted that the APB’s decision is a relevant consideration as the plaintiff has a legitimate expectation that he will be in a position to apply for release on parole on his EED. The defendant has a statutory duty, pursuant to ss 20(2) & 21(1) of the Act, to rehabilitate the plaintiff and to prepare the plaintiff for release back into the community.

In paragraph 21, Mr Knight cites the part of s 20(2) of the Act to which I have already referred above in dealing with the sentence plan application. In paragraph 22, Mr Knight reproduces the part of s 21(1) of the Act to which I have also referred in the same context.

Paragraph 23 of Mr Knight’s written submission is as follows:

Sections 20(2) & 21(1) of the Act impose a positive duty on the defendant, as part of safeguarding the “welfare” of prisoners, to rehabilitate the plaintiff (and every other prisoner), to reduce his risk of re-offending and to prepare him for reintegration back into the community. To suggest otherwise amounts to a proposition that Corrections Victoria has no responsibility for the dangerousness of prisoners released back into the community.

In paragraph 24 of the submission, Mr Knight asserts that ss 20(2) and 21(1) of the Act have been relied upon by Corrections Victoria, and have been held by the Supreme Court of Victoria, to provide statutory warrant for certain actions taken by Corrections Victoria, described by Mr Knight as follows:

(a)Application of instruments of restraints on a prisoner
Ref: Binse v Governor, HM Prison Barwon (1995) 8 VAR 508
Binse v Williams [1998] 1 VR 381, 392-394

(b)       Restriction on prisoner’s access to appeal documents
Ref:     Rich v Commissioner Core The Public Correctional Enterprise (Unreported, Supreme Court of Victoria, Cummins J, 18 February 1997)
(c)Application of instruments of restraint on a prisoner during escorts to and from court
Re:      Peninche v McDonnell & Secretary to the Department of Justice [1999] VSC 221

(d)      Refusal of media request to interview a prisoner
Ref:     Herald & Weekly Times Ltd v Correctional Services Commissioner [2001] VSC 329, [95]
(e)Imposition of sanctions on a prisoner pursuant to the Victorian Prison Drug Strategy
Ref:     Kaufman v Smith & Armytage (2001) 124 A Crim R 259, 270-272 [41]-[48]

(f) Indefinite detention of a prisoner in a High Security management unit
Ref: Knight v Minister for Corrections (2003) 145 A Crim R 1, 12 [43]

(g) Imposition of levy on the sale of cigarettes and tobacco to prisoners
Ref: Knight v Secretary, Department of Justice [2012] VSC 613.

Paragraph 25 of the written submissions reproduces proposed ground 2(c) from the originating motion.

Nothing further is said in specific support of this ground.

There then follow a series of references to principles and cases concerned with certiorari and mandamus in general. These occupy paragraphs 26 to 36 inclusive. In very large part, these references add nothing new or worthy of comment. One exception, perhaps, is the reference to Klavins v Director General, Ministry of Justice.[117] It is true that, as Mr Knight submits, that case has some similarities with the present in that it relates to a refusal of a prisoner’s application to the Western Australian Parole Board for work release. Mr Klavins’ application had been refused on the ground that he had been classified as a medium security risk within the prison system for reasons to do with prison discipline. Mr Klavins contended that that matter had no relevance to whether the applicant presented a risk to the public should he be allowed to work. However, contrary to Mr Knight’s submission, the court did not issue a writ of mandamus in relation to the impugned decision. Rather, the court was satisfied that the allegation by Mr Klavins raised “an arguable issue of law sufficient to warrant the grant of the writ of mandamus”. What the judge intended to convey by those words is made clear by the last paragraph of the judgment in which his Honour said that he proposed to grant an order nisi for a writ of mandamus on the specified ground.
[117]Unreported, Supreme Court of WA, Rowland J, 21 April 1995, BC9503530.

On 27 September 2013 reply submissions were filed on behalf of Mr Money. It is sufficient to note the following aspects of that reply submission.

As to proposed ground 2(a), counsel reiterated that the statement of the Adult Parole Board was relevant, not irrelevant, partly because it is a prerequisite to the exercise of the discretion to transfer a prisoner to a transition centre that the transfer occur not less than three months, and not more than twelve months, before the earliest possible release date of the prisoner: see s 56AC(2)(b). Mr Money had referred to this issue in circumstances where Mr Knight’s request was made more than twelve months before his earliest eligible date for parole. Mr Money accepted that, notwithstanding that timing, it would have been open to him to make a decision to transfer Mr Knight at a later date. However, he then concluded that “it does not seem likely” in the light of the statement of the Parole Board that Mr Knight “will be in the final twelve months of [his] sentence even after May of this year”. Counsel submitted that this was a rational and relevant consideration.

Counsel further submitted that any indications as to when a prisoner may be released are relevant more generally to the exercise of the s 56AC discretion, because the statutory scheme demonstrates a Parliamentary intention that transition centres serve the purpose of facilitating a prisoner’s transition from a prison environment to the community upon their release. Counsel provided the explanatory memorandum and the second reading speeches for the Bill which introduced s 56AC. The explanatory memorandum notes that s 56AC “allows” the Secretary to transfer a prisoner. This reinforces the proposition that s 56AC confers a discretion on the Secretary, not an enforceable duty.

Further, the second reading speeches note that the amendments give legislative recognition to a new correctional facility to be called a transition centre, and in particular to the establishment and operation of the male Community Transitional Unit (CTU) in West Melbourne. This is the Judy Lazarus Transitional Centre. The speech of the Minister for Corrections also included the following:

The CTUs were to be supported residential—style facilities that would fill the gap that currently exists between open camp prisons and release into the community.
Residential transition services units or pre-release centres, similar to the proposed Victorian CTU, have operated successfully interstate since early 1980, and internationally since early 1970. …
The CTU will not be a mini-prison. The CTU will be a non-institutional correctional facility managed by Corrections Victoria that will provide safe and secure custody of its residents while promoting positive behaviour change and responsible, supported engagement in the community.

Counsel submits that these extrinsic materials demonstrate a Parliamentary intention that the transition centre was to provide a facility for transition between existing prisons, and release into the community. The very reference to “transition” in the expression “transition centre” in s 56AC emphasises this point.

As to Mr Knight’s submission (at paragraph 18 of Mr Knight’s document) that the statement of the Adult Parole Board was irrelevant because “the plaintiff’s transfer to a transition centre is not dependent on a decision of the APB, but rather on the plaintiff’s EED”, counsel submitted that it is clear from Mr Money’s letter that he did not regard the decision as being dependent on a decision on the Parole Board. Counsel submits that it is also clear from the express terms of the letter that Mr Money considered Mr Knight’s EED.

As to the matters contained in paragraph 13 of Mr Knight’s submissions, counsel submits that it would defeat the statutory purpose to confine the phrase “earliest possible release date” in s 56AC to only the EED. Rather, counsel submits, the “earliest possible release date” may be a date identified by the Adult Parole Board in any case where it makes a determination, after the EED, as to when parole may be granted. If no such date has been identified, the earliest possible release date would then be the date on which the prisoner’s sentence expires. It was submitted that such an interpretation enables the provision to be given effect in the widest range of circumstances.

Turning to Mr Knight’s submissions under proposed ground 2(b), counsel submits that there is no basis for saying that Mr Money did not take the APB statement into account.

As to Mr Knight’s reliance on ss 20(2) and 21(1), counsel submits that the duties referred to in those provisions would not apply to the Secretary, or delegate, when exercising the discretion in s 56AC of the Act. Rather, those responsibilities are imposed on prison officers and prison Governors, or their delegates, respectively. By contrast, it is submitted, the discretion in s 56AC is imposed on the Secretary (or delegate). The discretionary power conferred by s 56AC is said to be an independent power primarily to be exercised by reference to the matters referred to in s 56AC(3). The Secretary (or delegate) might well also consider matters relating to rehabilitation and reintegration in making decisions under s 56AC, given that the factors in s 56AC(3) are not exhaustive, but, according to counsel’s submission, this is as a result of the purpose of providing for transfers in transitioning a prisoner from prison to the community, and not of the operation of any other section of the Act.

Finally counsel submits that the “general and unqualified assertion” by Mr Knight at paragraph 16 of his submission concerning the way in which Corrections Victoria has managed the plaintiff over many past years is not relevant to the subject matter of the proposed proceeding.

I accept the thrust of the submissions of counsel for Mr Money in relation to the transition centre application.

As to proposed ground 2(a), it was plainly not an irrelevant consideration for Mr Money, in determining (on 22 March 2013) Mr Knight’s request for a transfer under s 56AC of the Corrections Act 1986, that the Adult Parole Board had stated on 29 June 2012 that there was no prospect of an order for release for Mr Knight in the foreseeable future.

The ground of taking something irrelevant into account requires not only that the thing be irrelevant but that the statute forbids its consideration.[118]
[118]See Aronson & Groves, Judicial Review of Administrative Action (5^th edition, 2013), [5.30] and cases there cited.

In my view it is obviously wrong to suggest that the statement of the Parole Board was irrelevant, and utterly hopeless to suggest that the Corrections Act 1986 forbad its consideration.

The principal provision of s 56AC of the Corrections Act 1986 is sub-s (1) thereof. It confers a discretion on the Secretary that is not expressly confined by any words in the subsection itself. It is true that sub-s (2) restricts the circumstances in which the Secretary may direct the transfer of a prisoner to a transition centre. However, where those preconditions are satisfied, an open discretion remains with the Secretary. Further, anything logically relevant to deciding whether the preconditions are satisfied is a permissible consideration. That is confirmed by the opening words of sub-s (3), to wit “Without limiting the factors the Secretary may consider”.

As counsel for Mr Money has submitted, the tenor of s 56AC as a whole relates to “transition”. It is directed to the last stages of a prisoner’s confinement. Hence, even if the precondition laid down by s 56AC(2)(b) is intended to be assessed by reference only, in the case of a prisoner to whom a non-parole period applies, to that prisoner’s EED (an interpretation that seems highly unlikely), nevertheless, in determining whether or not to order the transition of a prisoner in respect of whom that precondition and the other preconditions were satisfied, it would be well open to the Secretary (or delegate) to take into account that, in reality, it was unlikely that the prisoner would be granted parole in the foreseeable future.

Accordingly, proposed ground 2(a) would be hopeless.

Read literally, proposed ground 2(b) could not possibly succeed, because it is obvious that Mr Money did take into account the statement of the Adult Parole Board.

Recognising this, Mr Knight submits that the ground should not be read literally but rather should be read as meaning that Mr Money failed to take into account what Mr Knight contends to be a consequence of the Parole Board’s attitude. That consequence, he submits, is that a heightened duty falls upon the Corrections authorities to speed up their preparation of Mr Knight for release on parole.

Even on this highly strained interpretation of proposed ground 2(b), it could not possibly succeed.

The ground of failing to take into account a relevant consideration applies only where the decision-maker was bound to take the omitted factor into account.[119] As I have already explained, s 56AC confers on the Secretary a broad discretion. Whether or not the Secretary may choose to pay more attention to the rehabilitation or preparation for release of a prisoner regarded by the Adult Parole Board as having poor prospects of parole in the foreseeable future, by no means can it be said that s 56AC obliges the Secretary to adopt such an approach in considering whether or not to transfer the prisoner to a transition centre. In fact, given the tenor of the provisions of s 56AC as indicated above, it may even be that it would not be open to the Secretary to transfer a prisoner in that situation to a transition centre.
[119]Ibid.

In any event, it is plain beyond argument that proposed ground 2(b) could not succeed. It would be doomed to failure.

Proposed ground (c) asserts that Mr Money’s decision was unreasonable in that he failed to give proper, genuine and realistic consideration as to the merits of Mr Knight’s request according to the relevant eligibility criteria. I refer again to the observations which I made in dealing with the first application with respect to the concepts of legal unreasonableness and allegations of failure to give “proper, genuine and realistic consideration” to a matter. Despite numerous opportunities, Mr Knight has singularly failed to provide any particulars or any arguments in support of this ground. I accept in substance what counsel for Mr Money says about this ground. In particular, I accept that Mr Money himself in his decision letter identified two compelling reasons why Mr Knight did not meet the criteria for the exercise of the discretion to direct a transfer to the transition centre, as set out in paragraph 143 above.

Accordingly, proposed ground 2(c) is also foredoomed to fail.

For completeness, I record that, once again, I have not taken into account adversely to Mr Knight any of the recent changes to the Victorian legislative provisions relating to parole. As in the case of the “sentence plan” application, had I not been of the view that the proposed proceeding was doomed to fail in any event, I would necessarily have invited the parties to address me on the significance of those amendments in relation to the grant of any relief.

Conclusion

For all of these reasons, both applications for leave to proceed must be dismissed.

6 November 2013	Commencement of Corrections Act 1986 s 73A headed “Safety and protection of the community paramount in parole decisions”.
2 April 2014	Commencement of Corrections Act 1986 s 74AA headed “Conditions for making a parole order for Julian Knight”.
8 May 2014	Expiry of minimum non-parole period for Julian Knight.
1 July 2014	Commencement of Corrections Act 1986 s 74AAB, headed “Release on parole of person in prison for sexual offence or serious violent offence”.
16 October 2014	Order of T Forrest J varying the order made by Smith J on 19 October 2014 so as to extend the ten year period during which Mr Knight could not bring a legal proceeding without leave of the Supreme Court.
31 October 2014	Commencement of Vexatious Proceedings Act 2014 and repeal of s 21 of the Supreme Court Act 1986.
20 February 2015	Judgment of Ginnane J in Knight v Shuard,[2] especially [6]-[12], [63] and [64] insofar as they relate to the order of T Forrest J of 16 October 2014 and to the introduction of the Vexatious Proceedings Act 2014.

[2015] VSC 105

24 March 2015