Knight v Money

[2009] VSC 242

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9420 of  2003

IN THE MATTER of Section 21 of the Supreme Court Act 1985 (Vic)

JULIAN KNIGHT	Plaintiff
v
BRENDAN MONEY	Defendant

---

JUDGE:	BYRNE J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1-2 JUNE 2009
DATE OF JUDGMENT:	2 JUNE 2009
CASE MAY BE CITED AS:	KNIGHT v MONEY
MEDIUM NEUTRAL CITATION:	[2009] VSC 242	revised 10 July 2009

---

Practice and procedure – vexatious litigant – application for leave to commence proceeding – proceeding to compel prison authority to permit use of computer in cell.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	The Plaintiff appeared in person.
For the Defendant	Mr P Hanks of Senior Counsel and Ms C Harris of Counsel.	Corrections Victoria

HIS HONOUR:

1. The plaintiff, Julian Knight, is a prisoner presently located at Port Phillip Prison. He is serving a life sentence and is not eligible for parole until 2014. Between 2001 and 2003, he commenced a number of proceedings in the courts and in VCAT as a consequence of which he was, on 19 October 2003, declared to be a vexatious litigant. In this proceeding, he seeks leave pursuant to s.22 of the Supreme Court Act to commence proceeding against the defendant, Brendan Money, who is the Acting Assistant Commissioner appointed under the provisions of the Corrections Act 1986.

1. The proposed claim arises out of the defendant's rejection of an application made by the plaintiff to the manager of the Port Phillip Prison for permission to have a personal in-cell computer.  There were possibly two such applications.  The first was lodged in July 2008 and addressed to the general manager of the prison.  It appears that this application was viewed sympathetically, although no formal acceptance was provided.

1. The evidence shows that the processes were set in train for the purchase of the computer as would have been the case had the application been granted.  This state of affairs continued until late in 2008 when an issue arose as to the use Mr Knight had made in August or thereabouts of a computer in the prison library.  He sought before me to explain how this occurred and that it was innocent and harmless.  I do not enter upon this issue.  It is sufficient for my purposes that this had the effect of interrupting the purchase process.

1. As a consequence of his urgings and perhaps of some pressure from the Ombudsman, Mr Money wrote to Mr Knight on 22 December 2008, speaking of the requirement that he demonstrate that there was some necessity that he have an in-cell computer.  This provoked a lengthy letter from Mr Knight to Mr Money dated 6 January 2009 in which he developed this point and dealt with some others.  This letter was treated as a resubmission of the July 2008 application and therefore as a fresh application whereas it might, I think, have been in pursuit of the earlier application.  In any event, the consequence was a letter from Mr Money dated 2 March 2009 rejecting the application.

1. It is this decision which is the subject of the proposed claim.  In his letter announcing his decision, Mr Money says this, and I quote:

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

I note the letter from Kangan Batman TAFE states that it would be desirable for you to have access to an in-cell computer.  The letter does not state an in-cell computer is essential for the courses you are studying, and so the education criterion is not met.

Examples of integration needs are where the prisoner may have a deficit or disability or where the prisoner's understanding of computers will assist in reintegration.  You do not have a deficit or disability, and you already have a good understanding of a computer.  Whilst Corrections Victoria is always conscious of dealing with an individual's transition and reintegration needs, in your case I would not consider an in-cell computer a critical or necessary part at this particular point of time.  It may be argued in the future, should the Adult Parole Board provide clear determination of your parole date, that your transition needs will be clearer and more specific needs be considered.

The Major Offenders Unit is responsible for considering yours and other prisoners' applications for an in-cell computer and advising the Commissioner.  On the basis of the information you have provided and in view of the issues outlined above, it would appear you do not qualify on the individual criteria for an in-cell computer.

1. The plaintiff now seeks to bring a proceeding against Mr Money seeking injunctive relief, relief in the nature of mandamus, and a declaration as to the permitted bases for dealing with an application for an in-cell computer.  These proposed claims are set out in his redrafted originating motion and statement claim filed on 17 March 2009. 

1. In considering the application for leave, I bear in mind two matters.  First, Mr Knight is not a lawyer and is not represented.  I therefore approach his proposed claims on the basis that I should seek to identify their substance without dwelling too much on their form.  Second, my present task is to determine whether, if permitted, the bringing of the proposed claims would be an abuse of process because they are foredoomed to fail.

1. The legislative and administrative background is rather complex. The list of prisoners' rights contained in s.47 of the Corrections Act does not include the right to have an in-cell computer; nor in 2008 was this a privilege approved for prisoners in Port Phillip Prison pursuant to Regulation 36 of the Corrections Regulations 1998.  Nevertheless, prisoners may be permitted to have an in-cell computer as part of the general administration of their custody.  It is important for present purposes that I observe that permission to purchase a computer and to have it in the cell is not a right in any sense of the word.  It is more to the nature of an indulgence which may be accorded a prisoner where this is considered appropriate.

1. There appears to be no statutory or regulatory foundation for this other than perhaps the role of the secretary of the Corrections Department as the person charged with the custody of the prisoners.  These custodial functions are, in fact, implemented by the Commissioner for Corrections and those public servants under the Commissioner.  One such person is the director of Prison Services.

1. A further complication arises from the existence of privately run prisons of which Port Phillip is one.  These are conducted by contractors engaged under Part 2A of the Act.  The functions and responsibilities of these contractors are established by agreement entered into between the contractor and the Minister pursuant to s.8B or perhaps by management agreement entered into by the secretary pursuant to s.9.  The terms of the agreement under which Port Phillip Prison is conducted are not known to me.

1. In 2003 the Commissioner issued a Commissioner's Requirement No. 03/2004 dealing with the process under which a person may purchase a computer and keep it in their cell.  This appears to refer to all prisons, including private prisons.  There is before me also a Director's Instruction No. 4.14 issued 1 January 2008 dealing with the same topic, but apparently referable to public prisons.  This is issued by the acting director prison services, it is relevantly in very similar terms to Commissioner's Request 03/2004.

1. Each of these documents is said to be issued for the guidance of prison managers in the case of Commissioner's Request 03/2004 or general managers in the case of Director's Instruction 4.14.  In each case this is a reference to the office formerly called the governor of the prison.

1. Broadly speaking a person may be eligible for permission to purchase a computer if they meet any of the three criteria in clause 1.1 of the relevant document.  Then a prisoner may be permitted to have the computer in their cell if they obtain permission under clause 1.2.

1. Eligibility under clause 1.1 arises where the person requires the computer for preparation of their case or defence or where they have an outstanding legal matter or outstanding appeal, or where the computer is required for an approved education program in which the prisoner is engaged, or where there are exceptional circumstances such as to meet reintegration needs.

1. I should add, before leaving this brief summary, that under each of these provisions and in the paragraphs that introduce them, it is made clear that other matters may be relevant, such as the prisoner's conduct and the requirements of the security of the prison.

1. It appears from Mr Money's affidavit that there was in 2008 and still is, a process within the department whereby computer applications by major offenders were ultimately the responsibility of a Major Offenders Review Panel which appears to have included the prison manager.

1. They were, in this sense, not dealt with at the prison manager level.  In these circumstances, the fact that Mr Knight's July 2008 application appears to have been processed in the months following, may have been in anticipation of a favourable decision by the panel rather than as a consequence of any final decision at managerial level.

1. I deal first with the injunction claim.  In terms, the claim here is for a mandatory injunction restraining the defendant from refusing to allow the application to be processed.  This is plainly inappropriate and without prospect of success if only because the application has already been processed and responded to by its rejection in March 2009.

1. The mandamus claim.  This claim too cannot be permitted to go forward.  It is an attempt to set aside the March determination on a number of grounds.  The fundamental difficulty is that the decision in question is not amenable to mandamus.  We are not here dealing with a prisoner's legal right or the Commissioner's legal duty to have or to permit prisoners to purchase a computer or to have it in their cell.

1. Furthermore there is no basis for any of the various grounds asserted in paragraph 3 of the statement of claim.  It's clear from the material that Mr Money considered the application on its merits and formed an adverse view of it.  The reasons which are set out in his letter of 2 March are not inappropriate nor are the further considerations set out in his affidavit.

1. I have considered each of the Grounds A to K proposed by Mr Knight.  There is, in my view, no substance in them even if mandamus were available.

1. In his argument, Mr Knight presented a submission to the effect that the circumstances in which this application was brought engendered in him a legitimate expectation.  This expectation, he says, was to have the application dealt with in accordance with clauses 1.1 and 1.2 and further that he would receive procedural fairness.  Putting to one side the more fundamental flaw which I have identified, this is another foredoomed argument if it be accepted, as I do on his material, that Mr Knight's application was dealt with in accordance with these guidelines.

1. Furthermore it seems that he was given the opportunity to address the difficulties which his application faced and which Mr Money identified.  Although it is not necessary that I do so, it may be helpful if I venture my views shortly on the application of the eligibility criteria contained in clause 1.1, for these were the subject of much argument by Mr Knight.

1. The Commissioner was entitled to conclude that the first criterion, that the computer is required for the preparation of his case in an outstanding legal matter, was without substance.  There were, in March 2009, no outstanding legal matters on foot, whether criminal or civil, in which Mr Knight was a party.  His claim with respect to the sending of letters in respect of which he had already had leave to commence was not alive.  Nor can it be said that the prospect that he might seek to set aside the vexatious litigant order satisfied this criteria.

1. The second criterion would render him eligible, if the computer were required for an educational course.  Mr Knight produced some evidence that it was desirable that he have his own computer, not that it was required.  Again the Commissioner was entitled to take the view that this criterion had not been met.

1. The third criterion has not yet arisen.  Mr Knight is not eligible for parole for five years.  Questions of his reintegration in the event that parole be granted, may be dealt with when this matter is resolved.

1. The declaration relief.  This claim too cannot succeed.  The court would never grant an injunction of the kind sought.  The question as to the exercise of the power must depend upon the circumstances in which it is invoked and cannot be determined in the abstract.  Accordingly, the application for leave to commence this proceeding must be rejected.  The application is refused.

---