Knight v Sellman

[2020] VSC 320

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

GENERAL LIST

S ECI 2020 00990

BETWEEN:

JULIAN KNIGHT	Applicant
and
PATRICIA SELLMAN (in her capacity as General Manager of Port Phillip Prison)	Proposed Respondent

---

S ECI 2018 03024

BETWEEN:

JULIAN KNIGHT	Applicant
and
EMMA CASSAR (in her capacity as Corrections Commissioner)	Proposed Respondent

---

S CI 2013 06673

BETWEEN:

JULIAN KNIGHT	Applicant
and
ADULT PAROLE BOARD	Proposed Respondent

---

S CI 2013 02362

BETWEEN:

JULIAN KNIGHT	Applicant
and
GREG WILSON (in his capacity as Director of the Department of Justice)	Proposed Respondent

---

S CI 2013 02043

BETWEEN:

JULIAN KNIGHT	Applicant
and
ADULT PAROLE BOARD	Proposed Respondent

---

JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	Not applicable.  Matters dealt with on the papers.
DATE OF JUDGMENT:	5 June 2020
CASE MAY BE CITED AS:	Knight v Sellman & Ors
MEDIUM NEUTRAL CITATION:	[2020] VSC 320

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VEXATIOUS LITIGANT – Applications for leave to commence proceedings – Prisoner – Proposed claims for judicial review of administrative decisions relating to parole – Decisions overtaken by events – Futility – Applications for leave refused – Supreme Court Act1986 (Vic) s 21 (repealed); Vexatious Proceedings Act2014 (Vic) Part 8.

VEXATIOUS LITIGANT – Application for leave to commence proceedings – Prisoner – Proposed claim for injunction against prison manager for provision of computer access – Jurisdiction of Supreme Court – Common law right of access to the courts – Human right to fair trial – Proposed proceeding misconceived in law and unsupported in fact – Constitution Act1975 (Vic) s 85; Vexatious Proceedings Act2014 (Vic) Part 8; Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 7, 24(1), 38, 39.

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APPEARANCES:	Counsel	Solicitors
No appearances

HIS HONOUR:

Introduction and overview

1. The applicant, Mr Julian Knight, is a prisoner at Port Phillip Prison (‘PPP’).  He is also a very active vexatious litigant.  Since 19 October 2004, he has been prohibited by orders of this Court made under statute from commencing a legal proceeding in a Victorian court or tribunal without prior leave.[1]  At present, the statute of principal relevance is the Vexatious Proceedings Act 2014 (Vic) (‘VPA’). On 17 February 2020, Mr Knight filed in this Court an application under s 54 of the VPA for leave to commence a proceeding in this Court.  The application has been styled Knight v Sellman (S ECI 2020/00990) (‘Knight v Sellman’).  That matter was referred to me for determination.  In considering it, I noted that there were six other applications by Mr Knight for leave to commence proceedings currently pending in this Court and that, in one way or another, all of them had connections with Knight v Sellman.

   [1]See A-G (Vic) v Knight [2016] VSC 488 (J. Forrest J) (‘A-G v Knight’).

1. It is appropriate for the Court to deal now with four of those six other pending applications for leave to proceed, as well as with the application for leave to proceed in Knight v Sellman, making a total of five applications to be dealt with.[2] 

   [2]The five applications that are being dealt with now are listed in reverse chronological order in the heading to this judgment.

1. As I will explain in due course, each of the five matters falls to be heard and determined ‘on the papers’, i.e. without an oral hearing before me.[3]  The application for leave to proceed in Knight v Sellman has been the subject of detailed affidavits and written submissions from both Mr Knight and the proposed defendant.  The four other matters are being dealt with more summarily.

   [3]As will be seen, in Knight v Sellman, Mr Knight appeared in person at oral directions hearings before Daly AsJ on 3 and 19 March 2020.

1. The application in Knight v Sellman is, in short, an application for leave to seek orders that PPP give Mr Knight access or greater access to a certain computer and/or certain computer files.  To that extent, Knight v Sellman resembles many previous applications to this Court made by Mr Knight, all of which have failed to result in orders for the grant of such access.[4]

   [4]A-G v Knight (n 1) [27].  See also Knight v Castle [2020] VSC 45, [2], [7]-[17] (Moore J) (‘Knight v Castle’).

1. In Knight v Sellman, Mr Knight has claimed, on some occasions, that he wants or needs access or greater access to the computer in question and/or the computer files in question for the purposes of preparing materials for the six other pending applications that I have mentioned (and for other purposes).  On other occasions during the running of Knight v Sellman, Mr Knight has said, in effect, that, for the purposes of that matter, he relies on the existence of only one of the six other pending matters, namely, Knight v The Queen (S ECI 2018/03025).[5]  In any event, the other six applications have been put on hold pending the determination of Knight v Sellman.  Mr Knight’s principal argument in Knight v Sellman is that he has a ‘common law right of unimpeded access to the courts’ (and an equivalent right under s 24 of the Charter of Human Rights and Responsibilities Act2006 (Vic) (‘Charter’)); that this ‘right’ is unlawfully denied to him if the Corrections authorities place any limit on his access to computer facilities and his access to the courts is thereby impeded to any extent; that this has in fact happened; and that, accordingly, he should have leave to commence a proceeding for a mandatory injunction in certain terms against the general manager of PPP.  As will be seen, that argument is fundamentally misconceived in several ways.  For that reason and for other reasons to be mentioned, Mr Knight’s application for leave to proceed in Knight v Sellman must be dismissed.

   [5]Knight v The Queen is one of the two pending matters that do not fall to be determined by me as part of the present exercise.  See further below.

1. Three of Mr Knight’s other pending applications, namely Knight v Adult Parole Board (S CI 2013/02043), Knight v Wilson (Director of the Department of Justice) (S CI 2013/02362) and Knight v Adult Parole Board (S CI 2013/06673), are very old.  Indeed, they were commenced in 2013 under the statutory regime that was in place prior to the commencement of the VPA on 31 October 2014.[6]  As will be seen, events have long overtaken their subject matter, such that it would now be futile and plainly wrong to allow them to proceed any further.  Accordingly, I will dismiss each of them.

   [6]As to the transitional position, see my judgment in Knight v Money [2015] VSC 105, [10]–[17] (‘Knight v Money’), and see further below.

1. The fourth of the other pending applications is Knight v Cassar (Corrections Commissioner) (S ECI 2018/03024).  Although not as old as the matters from 2013, this matter also falls to be dismissed on the ground of futility and on other grounds, as I will explain. 

1. The two other pending matters (apart from Knight v Sellman) are the abovementioned Knight v The Queen (S ECI 2018/03025) and Knight v Assafiri (Acting Deputy General Manager of Port Phillip Prison) (S ECI 2019/03572).  Both of those matters have been allocated to Richards J for determination.  Accordingly, I will not be determining them.  However, as already indicated, both matters have connections with Knight v Sellman, particularly Knight v The Queen.  In Knight v The Queen, Mr Knight seeks leave to bring an application for an extension of time to appeal from the convictions (of 1988) which led to his imprisonment.  On 4 December 2019, Richards J dismissed an application by Mr Knight in Knight v The Queen for leave to bring an interlocutory application seeking orders for computer access very similar[7] to orders of the kind that, undaunted, he now seeks in Knight v Sellman.  In Knight v Assafiri, Mr Knight seeks leave (from Richards J) to bring an application for a declaration that his ‘common law right of unimpeded access to the courts’ is infringed as a result of certain other alleged action or inaction of the authorities at PPP relating to Mr Knight’s legal matters.

   [7]See Knight v The Queen [2019] VSC 796, [3] (Richards J) (‘Knight v The Queen’).

1. I turn now to explain in more detail why all five of the applications with which I am dealing must be dismissed.

Past criminal and civil proceedings relating to or brought by Mr Knight and relevant statutory developments

1. On 10 November 1988, Mr Knight pleaded guilty in this Court before Hampel J to seven counts of murder and 46 counts of attempted murder relating to incidents on 9 August 1987 in the vicinity of Hoddle Street, Richmond.  He was represented by senior and junior counsel.  In his sentencing remarks, Hampel J recounted that Mr Knight was

responsible for one of the worst massacres in Australian history as a result of which seven people died and 19 people were injured.  Many more were fortunate to escape death or injury as [Mr Knight] indiscriminately fired over 100 rounds of ammunition, from three weapons, at passing motorists and at the police as they tried to apprehend [him].[8] 

Mr Knight was 19 years old at the time of those events.

[8]R v Knight [1989] VR 705, 705.

1. Hampel J sentenced Mr Knight to life imprisonment in respect of each of the seven counts of murder, and to ten years’ imprisonment for each of the 46 counts of attempted murder to be served concurrently with each other and with the life sentences.  Pursuant to s 17 of the Penalties and Sentences Act 1985 (Vic), Hampel J fixed a minimum term of 27 years.  The minimum term (referred to as a ‘non-parole period’ under the Corrections Act 1986 (Vic)) was due to expire on or about 8 May 2014. However, Mr Knight has not been granted parole. I will return to the matter of parole shortly.

1. During his imprisonment, Mr Knight has commenced or sought to commence a host of legal proceedings, mainly about the conditions of his imprisonment and matters relating to prison administration.[9] The vast majority have been without merit, and, as a result, as indicated above, litigation by Mr Knight has been subject to statutory restraint since 19 October 2004. On that day, Smith J made an order under s 21(2) of the Supreme Court Act 1986 (Vic) (as it then stood) declaring Mr Knight to be 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 the Supreme Court or in any other court or tribunal without the leave of the Court.[10]

   [9]Knight v Money (n 6) [2]; A-G v Knight (n 1) [23] (J. Forrest J).

   [10]A-G (Vic) v Knight [2004] VSC 407.

1. In his reasons for judgment, Smith J said:

Considering all the proceedings identified above in these reasons, (including his successful ones) a clear picture emerges of a person who is habitually and persistently and without reasonable cause instituting hopeless, and therefore, vexatious proceedings.  There is a high probability that he will continue to do so.  It is true that a few proceedings had merit, but even in those cases he showed a tendency to pursue the relief sought through the appeal process even though he must have known he had no prospects of success.  His conduct generally reveals a strong tendency to pursue hopeless proceedings.  There is no evidence to suggest that this might change.  It appears to me that an order should be made declaring him vexatious.[11] 

[11]Ibid [46].

1. As Smith J predicted, Mr Knight continued to pursue vexatious litigation.  He did so to an even greater extent than before.  The records of this Court indicate that, between the time of the decision of Smith J and the present time, Mr Knight has commenced a total of 66 further separate applications to this Court.[12]  Many of the applications were pressed to judgment.[13]  Lengthy, painstaking judgments have often been required.  As the years progressed, and as the expiry date of Mr Knight’s minimum non-parole period grew closer, Mr Knight made increasing reference in his complaints, claims and applications to alleged duties on the part of the prison authorities to take measures that would, he claimed, increase the prospects of him being granted parole once he became eligible.[14]  Relevantly to Mr Knight’s currently pending applications that were filed in 2013, in particular, but also to Knight v Cassar and, indirectly, to Knight v Sellman, the prospects of any grant of parole to Mr Knight were to be fundamentally affected by a statutory amendment in April 2014, as will be seen shortly.

   [12]In addition, the material filed in the present matters indicates that, over the same period, Mr Knight has made various applications to other Victorian courts or tribunals or to Commonwealth and other non-Victorian courts or tribunals.

   [13]See the lists of published judgments and other determinations annexed to the judgment of J. Forrest J in A-G v Knight (n 1).

   [14]See, eg, my judgment in Knight v Money (n 6) [2], [72], [93]-[95].

1. On 1 January 2011, the Civil Procedure Act 2010 (Vic) came into operation. Among other things, that Act imposes ‘overarching obligations’ on persons to further the administration of justice in relation to any civil proceedings in which they are involved.[15]  Persons are not to make any claim that is frivolous or vexatious or that is an abuse of process or that does not have a proper basis.[16] There are also overarching obligations to take steps to resolve or determine the dispute,[17] to cooperate with the other parties and the court,[18] to use reasonable endeavours to resolve disputes,[19] to narrow the issues in dispute,[20] to ensure that costs are reasonable and proportionate,[21] and to act promptly and minimise delays.[22]  In exercising any power in relation to a civil proceeding, a court may take into account any contravention of the overarching obligations.[23] Under s 63(1), a court may dismiss a civil proceeding if satisfied that the claim in the proceeding has no real prospect of success. Under s 63(2)(c), a court may do so of its own motion if satisfied that it is desirable to summarily dispose of the proceeding.

   [15]Civil Procedure Act2010 (Vic) (‘CPA’) s 16.

   [16]Ibid s 18.

   [17]Ibid s 19.

   [18]Ibid s 20.

   [19]Ibid s 22.

   [20]Ibid s 23.

   [21]Ibid s 24.

   [22]Ibid s 25.

   [23]Ibid s 28.

1. On 2 April 2014, the Corrections Amendment (Parole) Act2014 (Vic) came into operation, inserting s 74AA into the Corrections Act 1986 (Vic). Section 74AA(3) provides that the Adult Parole Board may make an order for release on parole in respect of ‘the prisoner Julian Knight’ if, and only if, the Board is satisfied (on the basis of a report prepared by the Secretary to the Department) that he is in imminent danger of dying, or is seriously incapacitated, and as a result he no longer has the physical ability to do harm to any person, that he has demonstrated that he does not pose a risk to the community, and that, because of those circumstances, the making of the order is justified.[24]

   [24]As indicated below, on 17 August 2017, the High Court rejected a constitutional challenge brought by Mr Knight in relation to those provisions: Knight v Victoria (2017) 261 CLR 306.

1. On 5 September 2014, the Attorney-General applied for an indefinite extension of the effect of the order declaring Mr Knight a vexatious litigant that had been made by Smith J on 19 October 2004.

1. On 16 October 2014, T. Forrest J extended the order of Smith J until the final determination of the Attorney-General’s application.

1. On 31 October 2014, as indicated above, the VPA came into operation. By s 91(1) of the Act, an order declaring a person to be a vexatious litigant made under s 21(2) of the Supreme Court Act1986 (Vic) 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 Act. Section 29 of the VPA empowers the Supreme Court constituted by a Judge of the Court to make a general litigation restraint order against a person if the Court is satisfied that the person has persistently and without reasonable grounds commenced or conducted ‘vexatious proceedings’ (as defined in s 3 of the Act). More generally, the VPA sets up an elaborate regime designed to control or limit vexatious litigation.  A stated purpose of the VPA is to balance individual ‘rights’ of access to the courts with the public interest in an efficient and effective justice system.[25]  Another stated purpose relates to the management and prevention of vexatious behaviour.[26]  The policy concerns that underlie the VPA were dealt with in some detail by J. Forrest J in the matter relating to Mr Knight to which I am about to turn.  With respect, I endorse everything said by J. Forrest J relating to the policy of the Act.  Further, everything said by J. Forrest J about Mr Knight’s own litigious behaviour is consistent with the very large amount of material relating to Mr Knight that I have had to consider in dealing with these present matters and previous matters relating to him.[27]

   [25]Vexatious Proceedings Act2014 (Vic) (‘VPA’) s 1(a). As to the true nature and content of such ‘rights’, see below under the heading ‘Knight v Sellman: determination’. In relation to the effect of a partially comparable reference in another statutory purpose provision to a ‘right’, see Ryder v Booth [1985] VR 869, 870 (Young CJ); Accident Compensation Commission v Croom [1991] 2 VR 322, 323 (Young CJ).

   [26]Ibid s 1(b).

   [27]The previous matters included Knight v Money (n 6) and Knight v Wise [2015] VSC 157 (‘Knight v Wise’).

1. On 30 August 2016, J. Forrest J granted the abovementioned application of the Attorney-General and ordered that Mr Knight be the subject of a general litigation restraint order under Part 4 of the Act.  J. Forrest J further ordered that Mr Knight must not, without the leave of the court or tribunal in which the proceeding is to be commenced, commence from that date any legal proceedings, whether civil or criminal, in the Supreme Court, an inferior court or any tribunal.  The order was expressed to remain in force indefinitely.

1. In his reasons for judgment,[28] J. Forrest J made the following presently relevant observations:

   [28]A-G v Knight (n 1).

Mr Knight has, since he was declared a vexatious litigant, persistently brought proceedings that were either hopeless or had no reasonable grounds or prospects of success.  For the reasons below, I am of the view that the order of Smith J should be extended indefinitely.[29]

[29]Ibid [4].

…

As to Mr Knight, Professor Mullen[30] said that:

[30]An expert psychiatric witness called by Mr Knight himself.

(a)He does not suffer from a ‘serious psychiatric disorder’ but has a rigid obsessional personality trait.

…

(d)He will continue to complain about his conditions of incarceration (whether justified or not) as long as he is incarcerated.

(e)His obsessional traits extend to stubbornness and a tendency to lose a sense of proportion in pursuing a particular goal.

(f)Mr Knight did tell Professor Mullen that some of the cases he took on were petulant and a way of causing trouble – although, on reflection, the Professor thought that what Mr Knight said was that the trouble he caused gave him some satisfaction.

(g)His personality is such that it makes it more likely that he will persist in any tasks he takes on to a greater extent than the average person.

(h)Given his past behaviour, it was unlikely that Mr Knight would cease or decrease his litigious behaviour.[31]

[31]A-G v Knight (n 1) [20].

…

Since October 2004, Mr Knight has made numerous applications to the Court seeking leave to issue proceedings against a variety of defendants.  More often than not these applications have been connected with the conditions of his incarceration and complaints about prison administration.  The five tables (now annexed to this judgment), provided by the Attorney-General, precis the situation.[32]

[32]Ibid [23].

Table 1 sets out the fifteen occasions (14 in the trial division and one application for leave to appeal) from October 2006 until March 2013 in which this Court has held that the proceedings, if instituted, would constitute an abuse of process.  The words ‘hopeless’ or ‘foredoomed to fail’ appear in many of these dismissals of Mr Knight’s applications.[33]

[33]Ibid [24].

Table 2 is marginally different to table 1, but makes the same point.  It details eight instances from October 2012 until October 2015 where a court has held that Mr Knight had not discharged the burden of proving that the proposed proceeding, if instituted, would not be an abuse of process.  Of these, six were decisions of the trial division, and two of the Court of Appeal.[34]

[34]Ibid [25].

Table 3 shows three instances, between July 2013 and August 2015, where Mr Knight failed to comply with mandatory requirements of the Act.[35]

[35]Ibid [26].

Table 4 sets out the five times Mr Knight has filed applications in relation to access to an in-cell computer in prison.  All applications were dismissed.[36]

[36]Ibid [27].

Table 5 notes the ten occasions upon which Mr Knight has been granted leave to commence a proceeding.  Of these, Mr Knight was ultimately successful on three occasions (two of which were by consent, and in the third he was successful in part), whilst three were dismissed and the balance not prosecuted.[37]

[37]Ibid [28].

In summary, since 2004 Mr Knight has made 30 applications for leave to commence proceedings under the SCA and the Act which have been refused by judges of this Court.  He has enjoyed mixed success in the proceedings in which leave was granted – three were successful, three were unsuccessful.[38]

[38]Ibid [29].

Further, more than 20 judicial officers have considered Mr Knight’s applications or (where leave was granted) proceedings – a number on multiple occasions.[39]

[39]Ibid [30].

…

It is not to the point, as Professor Mullen explained, that Mr Knight is not a querulous litigant.  The fact is that he is a persistent and undeterred litigant who will continue to litigate any cause regardless of its merit.[40]

[40]Ibid [37].

Indeed, Professor Mullen said that he has counselled Mr Knight to avoid persistent litigation, but to no avail:

I’ve said it on a number of occasions, I suspect in this report, is that his pursuit of repeated litigation which brought him into the public eye is inevitably very unwise.[41]

[41]Ibid [38].

…

So, it follows[42] that the existence of a number of successful applications for leave or judgments does not paint the whole picture.  Each application places a strain on the administration of the justice system.  Whether under the SCA or the Act, Mr Knight’s applications, frequently baseless, take up scarce judicial resources and mean that other non-vexatious litigants are delayed in accessing justice.[43]

[42]Here, J. Forrest J was referring to certain observations made by Basten JA in Potier v A-G (NSW) [2015] NSWCA 129, [119]-[120].

[43]A-G v Knight (n 1) [46].

The drain of multiple hopeless cases on the resources of the Court was recognised by the Law Reform Committee Inquiry into Vexatious Litigants (whose recommendations led to the legislative changes resulting in the Act), where the following was said (emphasis added):

Public funding for courts and tribunals is not unlimited.  Victoria’s courts and tribunals are increasingly expected to ensure they use their available resources to administer justice as efficiently and effectively as possible.  These concepts are becoming part of the values of the justice system itself.  The Government’s Justice Statements list effectiveness as a ‘core value’ of the justice system along with equality before the law, fairness and accessibility.

The VLRC (Victorian Law Reform Commission) listed proportionality – the idea that the costs incurred by the parties and by the public in the provision of court resources should be proportionate to the matter in dispute – as another desirable goal of the civil justice system.  Vexatious litigants challenge these values because they consume court and tribunal resources for proceedings that may be unmeritorious and, in doing so, reduce the resources available for other litigants.  In a 2006 speech the Master of the Rolls in the United Kingdom (UK) argued that:

If courts are required to utilise their scarce financial and temporal resources on vexatious claims and applications, their ability to properly deal with claims and applications that have genuine merit will be diminished.  Such claims may not be heard due to lack of time or resources.  If heard, the hearing may be delayed for a lengthy period of time.  Equally, if heard, a judgment may then be delayed because the judge has to spend precious time dealing with a vexatious litigant, or with matters that have been referred to him to hear as a consequence of vexatious litigation generally.

This analysis suggests that, by reducing the efficiency of the courts, vexatious litigants affect access to justice for the community as a whole.[44]

[44]Ibid [47] (emphasis in original).

…

The prospect of any reduction in Mr Knight’s persistent litigious behaviour is nil.  In 2004, Smith J arrived at the same conclusion – and his Honour has been proven correct.  Notwithstanding that Mr Knight has been declared a vexatious litigant, he has continued to make application after application after application.  Many have been recognised by judges of this Court as being ‘hopeless’ or ‘foredoomed to fail’.  Others are merely a repetition of a previous application.[45]

Smith J had only a relatively short history to guide him in reaching his conclusion as to Mr Knight’s future conduct.  Here, the case is stronger.  The litigious story is now at least 15 years old and unabated.  There is also Professor Mullen’s opinion that, in effect, there is no prospect in the future of any reduction in attempts by Mr Knight to litigate any issue on which he takes umbrage.[46]

The end result is that it is patently in the interests of justice to extend the order, declaring Mr Knight to be a vexatious litigant.[47]

I am not deterred from this course by the fact that there have been some successful applications; even fewer court victories.  The unnecessary strains placed on the administration of justice by repeated hopeless applications is an overwhelming factor in concluding that the general litigant restraint order should be extended.[48]

…

Given the aims of the Act, specifically the pursuit of an efficient and effective administration of justice (which I have outlined above), and my conclusion that Mr Knight’s litigious conduct will persist indefinitely, I consider that it is in the interest of justice that the order should be of an indefinite duration.[49]

To make it clear, such an order does not prevent Mr Knight from seeking leave to commence a proceeding pursuant to Part 8 of the Act.[50]

[45]Ibid [51].

[46]Ibid [52].

[47]Ibid [53].

[48]Ibid [54].

[49]Ibid [56].

[50]Ibid [57].

1. J. Forrest J went on to say[51] that, rather than impose a requirement that any application for leave to commence a proceeding be made to the Supreme Court, he proposed to order (pursuant to s 30 of the Act) that any such application be made in the jurisdiction in which the applicant sought to issue the putative proceeding.  His Honour considered that this accorded with common sense and was consistent with the two core values of the justice system – effectiveness and proportionality – that had been outlined by the Law Reform Commission Inquiry into Vexatious Litigants to which his Honour had referred. 

   [51]Ibid [58]–[62].

1. Since the decision of J. Forrest J of 30 August 2016, and notwithstanding everything said by his Honour (and by Smith J before him), Mr Knight has continued, unreasonably, to vex numerous targets of his complaints and claims, to waste this Court’s time and resources with meritless applications, and to diminish access to justice for the community as a whole.  Eleven applications by Mr Knight for leave to commence proceedings (including one application for reinstatement of a dismissed application) have been finalised by way of dismissal or discontinuance since 30 August 2016.  Then there are the seven applications to which I have referred above, being the applications by Mr Knight that, until now, have remained pending.  Those two categories represent 18 of the 66 separate applications made to this Court by Mr Knight since the decision of Smith J of 19 October 2004.  In addition, since 30 August 2016, there have been at least four unsuccessful applications for leave to commence interlocutory applications made by Mr Knight within larger applications.[52]  Further again, in 2017, Mr Knight made an unsuccessful application to VCAT for leave to bring an application for review of a decision made under the Freedom of Information Act1982 (Cth).[53]

   [52]Three of them were dealt with by Moore J on 6 June 2019: Knight v Wilson [2019] VSC 373 (‘Knight v Wilson’).  Another was dealt with by Richards J on 4 December 2019: Knight v The Queen (n 7).

   [53]See affidavit of Mr Knight re-affirmed 4 April 2019 in Knight v Cassar (S ECI 2018/03024) [198]-[201].

1. On 17 August 2017, the High Court rejected a constitutional challenge brought by Mr Knight in relation to s 74AA of the Corrections Act1986 (Vic) (the abovementioned section relating to any grant of parole to Mr Knight), holding that the section was not invalid on the ground of contrariety to Chapter III of the Commonwealth Constitution.

Mr Knight’s three leave applications of 2013: assumptions about the applicable statutory provisions

1. I will assume in Mr Knight’s favour, without deciding, that, notwithstanding that s 91 of the VPA deems an order made under the former s 21(2) of the Supreme Court Act1986 (Vic) to be a ‘general litigation restraint order’ made under the Act, each of Mr Knight’s applications of 2013 otherwise falls to be considered and decided by reference to the statutory provisions that applied when they were filed, and under the legal principles that were developed in relation to those provisions. That is to say, I will assume that, on the proper construction of s 14 of the Interpretation of Legislation Act1984 (Vic) and of the transitional provisions in the (2014) Act itself, the former s 21 of the Supreme Court Act1986 (Vic) continues to apply to the applications filed in 2013, together with the legal principles that were developed under that section, to the exclusion of the provisions of the (2014) Act that would otherwise be applicable.[54]  Accordingly, I will assume that the specific provision in the (2014) Act[55] imposing, as a precondition for a grant of leave under that Act, that the Court be satisfied that ‘there are reasonable grounds for the proceeding’, does not in terms apply to Mr Knight’s applications of 2013. On the other hand, even under the principles that were developed by reference to s 21 of the Supreme Court Act1986 (Vic) prior to its repeal, leave is not to be given unless the Court is satisfied that the proposed proceeding is not or would not be an abuse of the process of the Court. Generally speaking, a proceeding that is hopeless or doomed to fail is an abuse of process of the Court; the onus of demonstrating that a proposed proceeding would not be an abuse of process lies on the applicant; and, even if the Court is satisfied that the proposed proceeding would not be an abuse of process, any grant of leave is discretionary.[56]

Dealing with applications for leave on the papers; dealing with applications for leave summarily and on the Court’s own motion

[54]Except, of course, s 91 of the VPA itself.  See my judgment in Knight v Money (n 6) [10]–[17]. Cf Knight v Shuard [2015] VSC 36 (Ginnane J).

[55]VPA s 55(b).

[56]See Phillip Morris Ltd v A-G (Vic) (2006) 14 VR 538 (Court of Appeal); Knight v Anderson (2007) 16 VR 532, 534 [7] (Bell J); Knight v Money (n 6) [10], [12].  Those minimum requirements (as well as others) would also apply under the VPA:  see VPA s 55(a).

1. There was nothing specific in the former s 21 of the Supreme Court Act1986 (Vic) about the procedures to be adopted on an application for leave to proceed under that section.[57]  Nor were there any rules of court of specific application.  However, a practice in the Supreme Court, and in other courts, of dealing with some matters, especially interlocutory matters, ‘on the papers’ was followed well before the (2014) Act was enacted.[58] Applications for leave to proceed under s 21 of the Supreme Court Act1986 (Vic) were matters of an interlocutory nature. So are applications for leave to proceed under s 54 of the (2014) Act. Had the three applications for leave to proceed that were filed in 2013 been made after 31 October 2014, s 63 of the (2014) Act would have applied to them, with the result that the Court would have been obliged to deal with them ‘on the papers’, i.e. without an oral hearing, unless the Court considered that there were exceptional circumstances, and that it was appropriate to conduct an oral hearing having regard to the interests of justice. Of course, s 63 of the VPA does apply to the applications in Knight v Cassar (commenced in 2018) and in Knight v Sellman (commenced in 2020).  In my view, by analogy with s 63 of the (2014) Act, it has long been at least open to the Court to deal with pre-31 October 2014 applications ‘on the papers’, at least in a proper case.  It will generally be a proper case where no procedural unfairness to a party would be involved and due allowance is made for lack of legal representation.[59]  Here, in my view, dealing with the applications for leave of 2013 on the papers, i.e. on the written materials that are in hand now, involves no procedural unfairness to Mr Knight nor any want of due allowance for his lack of legal representation, as I will further explain in due course.  The same applies in relation to Knight v Cassar and Knight v Sellman.  Indeed, as will be seen, in Knight v Sellman an order was made on 19 March 2020 by Daly AsJ for the application to be determined on the papers. It seems that this order was not the subject of any dispute at the time it was made. Further, in view of the abovementioned connections between the matters which I am determining, it is desirable to deal with all of them as soon as practicable; and, at present, due to the COVID-19 pandemic, the Court is necessarily dealing with more matters than usual ‘on the papers’. The Court’s power to do so is fortified by s 129B of the Supreme Court Act 1986 (Vic), a provision that was inserted by the COVID–19 Omnibus (Emergency Measures) Act 2020 (Vic).

   [57]Section 21(7) provided that the Court, when exercising a power under s 21, must be constituted by a Judge of the Court.  There is no equivalent provision in the VPA.  But those things do not touch the present point.

   [58]Supreme Court of Victoria, Practice Note No 1 of 1996 [1997] 1 VR 257; ZP v PS (1994) 181 CLR 639, 673; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439, 446-7; Neil J Williams, LexisNexis Butterworths, Civil Procedure: Victoria, vol 1 (at Service 312) [46.02.23].

   [59]See Roberts v Harkness [2018] VSCA 215 [46]-[68], esp [58]-[60] (‘Roberts v Harkness’).

1. As to dealing with applications for leave to proceed in a summary way and/or on the Court’s own motion, I note that one of the principal purposes of declaring a person to be a vexatious litigant under the former s 21 of the Supreme Court Act1986 (Vic) or of making a person the subject of a ‘general litigation restraint order’ under s 29 of the (2014) Act is to ensure that the person will not be entitled to trouble any proposed defendant or respondent with a need to respond to litigation unless and until the relevant court or tribunal grants leave to proceed (although there may be cases where the court or tribunal invites or directs the proposed defendant or respondent to participate in the processing of the application for leave[60]).  Unless and until a proceeding is commenced pursuant to a grant of leave, there is no ordinary inter partes litigation in existence at all.  There is merely a unilateral statutory application to the court or tribunal by the person concerned.  Subject to the VPA and to the requirements of procedural fairness, and to the need to take into account a lack of legal representation, the court or tribunal itself may respond to the application as it considers appropriate.  In that regard, I note that, as J. Forrest J pointed out in A-G v Knight,[61] another fundamental purpose of the statutory framework[62] is to protect Victorian courts and tribunals, and the administration of justice in Victoria generally, from the burdens and ill effects of vexatious litigation.  While courts and tribunals should remain mindful of what s 1(a) of the (2014) Act refers to as ‘individual rights of access to the courts’[63] and should always be ready and willing to allow a claim that has been shown to be non-vexatious to be commenced, including such a claim made by a prisoner,[64] courts and tribunals should also be astute to ensure that the protective aims of the legislation are met.  As Lord Denning said in A-G v Vernazza:[65] ‘no man, let alone a vexatious litigant, has a vested right to bring or continue proceedings which are an abuse of the process of the court’.[66]  It happens to be the case that, in four of the five applications for leave with which I am dealing,[67] directions have been given for the exchange of written submissions pursuant to the abovementioned practice that is sometimes adopted, of inviting or directing proposed defendants or respondents to participate in the processing of an application for leave.  Indeed, in Knight v Sellman detailed written submissions have actually been exchanged.  The parties have not actually filed written submissions in the other three matters (being the three applications of 2013), but, as indicated in paragraph 36 below, the Court and Mr Knight were informed in the course of Knight v Sellman that the proposed defendant in each of those three matters would seek to have the application summarily dismissed as futile without further ado.[68]  Mr Knight was given an adequate opportunity to make written submissions as to the utility or otherwise of those three applications and said nothing in that regard.  In those circumstances (as I will further explain), and having regard to the purposes of the relevant legislation, it seems to me that the Court can and should step in now to bring an end to each of the three applications of 2013.  As will also be seen, similar considerations apply to Knight v Cassar.

   [60]But see now VPA ss 59 – 60.

   [61]A-G v Knight (n 1).

   [62]This includes the pre-31 October 2014 statutory framework.

   [63]But see discussion in (n 25).

   [64]See and compare Muir v R (2004) 206 ALR 189, 194 [25] (Kirby J, dissenting); Rich v Secretary, Department of Justice [2010] VSC 390, [45] (Bell J); Hamzy v Commissioner, Corrective Services and New South Wales [2020] NSWSC 414, [158] (Bellew J).

   [65][1960] AC 965.

   [66]Ibid 977. This statement was referred to with apparent approval by Barwick CJ and McTiernan J in Commonwealth Trading Bank v Inglis (1974) 131 CLR 311, 316.

   [67]The exception is Knight v Cassar.

   [68]See affidavit of Patricia Sellman sworn 9 April 2020 [21.2] (‘Ms Sellman’s affidavit of 9 April 2020’) and written submissions of Patricia Sellman dated 9 April 2020 [9(i)] (‘Ms Sellman’s written submissions of 9 April 2020’), both filed in Knight v Sellman.

1. I am in no doubt about the power of the Court to take the steps I propose to take.  Even where legislation relating to vexatious litigation does not apply, the inherent jurisdiction of the Court can be availed of, on the Court’s own motion, to dismiss a proceeding in order to protect the processes of the Court from abuse.[69] The same power, i.e. the power to summarily dismiss a proceeding that is vexatious or that is otherwise an abuse of process, is also conferred on the Court expressly by Rule 23.01(1) of the Supreme Court (General Civil Procedure) Rules2015 (‘the Rules’).[70] It follows, in my view, that Rule 23.01(1) also can be availed of on the Court’s own motion. Moreover, as indicated above, the Civil Procedure Act2010 (Vic) is full of provisions designed to fortify the powers of courts to protect themselves, and to protect the administration of justice generally, from abuse of process and from other undesirable behaviour in civil litigation. In particular, s 63 of the Civil Procedure Act2010 (Vic) confers power on the Court to dismiss a civil proceeding (which, of course, would include an application for leave to proceed of the present kind) on the Court’s own motion, provided only that the Court is satisfied that the civil proceeding has ‘no real prospect of success’[71] and that it is ‘desirable to summarily dispose of the civil proceeding’.[72]  As will be seen, those conditions are amply met in relation to all five matters with which I am dealing.

   [69]Wentworth v Graham (2003) 57 NSWLR 741, 742 [2], applying Commonwealth Trading Bank v Inglis (1974) 131 CLR 311, 314, 319-320; Neil J Williams, LexisNexis Butterworths, Civil Procedure: Victoria, vol 2 (at Service 302) [300.0].

   [70]Knight v Bell [2000] VSCA 48; Neil J Williams, LexisNexis Butterworths, Civil Procedure: Victoria, vol 1 (at Service 316) [23.01.45]. See also at [23.01.47].

   [71]CPA (n 15) s 63(1).

   [72]Ibid s 63(2).

1. Accordingly, in my view, the Court had and has full power to deal summarily, on the papers, and on its own motion, with applications for leave to proceed made under the former s 21 of the Supreme Court Act 1986 (Vic). The position is a fortiori in relation to applications for leave to proceed made under the VPA.

The three leave applications of 2013: futility

1. As to each of the applications filed in 2013, the proposed proceeding would amount to an application for judicial review of administrative action taken by the Corrections authorities.  The relief to be sought would be an order in the nature of certiorari or mandamus or a declaration.  The grant of relief by way of judicial review of administrative action is usually discretionary, even where the applicant is not a vexatious litigant.[73]  Usually, the Court can and will refuse certiorari or mandamus or a declaration where such relief would be futile.[74]

   [73]Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6^th ed, 2017) [17.50] (‘Judicial Review of Administrative Action’).

   [74]Ibid [17.140], [17.150], [17.160]; Moran v Secretary, Department of Justice and Regulation (2015) 48 VR 119, [21] (McDonald J).

1. As indicated above, Mr Knight’s three pending leave applications filed in 2013 have all been overtaken by subsequent events and it would be futile and quite wrong to allow any of them to proceed any further.

1. The first in time is Knight v Adult Parole Board (S CI 2013/02043). This is an application for leave to bring an application for judicial review (under Order 56 of the Rules) of a decision made by the Adult Parole Board on 22 March 2013 refusing a request by Mr Knight for a review of an even earlier decision of the Board, namely a decision of 29 June 2012 refusing a request by Mr Knight for a tentative release date. Having regard to the passage of time and the terms of s 74AA(3) of the Corrections Act1986 (Vic) referred to above (i.e. the provision to the effect that Mr Knight may not be released on parole unless in imminent danger of dying or seriously incapacitated and as a result he no longer has the physical ability to do harm to any person and has demonstrated that he does not pose a risk to the community and that, because of those circumstances the making of the order is justified), the nature of the claim proposed to be made by Mr Knight against the Adult Parole Board in S CI 2013/02043 only needs to be stated to be seen to be now hopeless. It is not necessary to determine whether the existence of the 60 day time limit in Rule 56.02 of the Rules would provide an additional reason for arriving at the same conclusion. The application for leave must, in any event, now be dismissed.

1. Similar reasoning, and the same conclusion, applies to the second and third of Mr Knight’s pending 2013 applications.

1. In the second one (Knight v Greg Wilson (Director of the Department of Justice) (S CI 2013/02362)), the proposed defendant originally was Claire Noone, the then Acting Director of the Department of Justice.  In 2017, Mr Greg Wilson became the Director of the Department of Justice and an order was made by Daly AsJ substituting Mr Wilson for Ms Noone.[75]  The relief that would be sought is an order in the nature of certiorari to quash a decision made by Ms Noone on 11 April 2013 refusing a request by Mr Knight for a rehabilitation and transition permit under the Corrections Act1986 (Vic). The request was intimately related to the then upcoming expiry of Mr Knight’s non-parole period. There is absolutely no prospect of this Court requiring the Department of Justice to now reconsider that decision of 11 April 2013. To do so at this stage would be completely pointless.

   [75]This history is recounted in Knight v Wilson (n 52) [9] (Moore J).

1. The third in time of the applications filed in 2013 is Knight v Adult Parole Board (S CI 2013/06673).  In that matter, Mr Knight would seek an order in the nature of mandamus requiring the Adult Parole Board to review a decision of 9 December 2013 in relation to parole, and to inform Mr Knight of what the Parole Board required of him before he was granted parole.  Obviously, that dispute has also been entirely overtaken by the subsequent events to which I have referred.

1. As mentioned above, in Knight v Sellman, Mr Knight was afforded an opportunity to comment on whether there was anything useful left in the 2013 applications.  The matter of futility was specifically raised in paragraph 21 of the affidavit of 9 April 2020 of the proposed defendant, Ms Sellman, and in paragraph 9(i) of the submissions dated 9 April 2020 filed by Ms Sellman.  In his reply submissions dated 24 April 2020, Mr Knight commented specifically on large parts of Ms Sellman’s material, but notably made no reference whatever to the matter of the futility of the applications filed in 2013.  Plainly, nothing can be said by Mr Knight against the proposition that each is now hopeless on the ground of futility.  The concern of the law relating to procedural unfairness is with practical injustice.[76]  Mr Knight suffers no practical injustice in not being given a further opportunity to make submissions in relation to the three applications filed in 2013.

   [76]Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, 14 [37] (Gleeson CJ) (‘Ex parte Lam’); Roberts v Harkness (n 59) [47].

1. It is clear that the continuation of any of the three applications of 2013 would be an abuse of the process of this Court.  In those circumstances, even on the assumption (adopted above) that the provisions of the (2014) Act are not relevantly applicable, it is more than appropriate, under the pre-31 October 2014 principles, that the Court should now dismiss each of Mr Knight’s three pending leave applications filed in 2013.

Knight v Cassar (S ECI 2018/03024)

1. The matter of Knight v Cassar is an application by Mr Knight under s 54 of the VPA for leave to commence a proceeding against Dr Emma Cassar in her capacity as the Commissioner of Corrections Victoria.

1. The orders Mr Knight would seek in the proposed proceeding are stated as follows in the initiating document:

1.An order in the nature of certiorari directing the defendant to reconsider the annual review of the plaintiff’s classification and placement according to law and pursuant to s.47(1)(l) of the Corrections Act 1986 (Vic), on the ground that the defendant’s Major Offenders Unit failed to give a proper and realistic consideration of the merits of the plaintiff’s case when it decided on 10 October 2018 that the plaintiff remain at Port Phillip Prison as an A2 Maximum Security rated prisoner.

2.A declaration that the defendant has a statutory obligation to prepare the plaintiff for release on parole pursuant to s.74A(3)(a)(ii) of the Corrections Act 1986 (Vic).

1. As I will indicate, Mr Knight has had a sufficient opportunity to show that leave should be granted to commence a proceeding seeking one or other or both of those orders.  However, what he has put forward does not show any such thing.  For the purposes of s 55(a) of the Act, I am not satisfied that the proposed proceeding would not be a ‘vexatious proceeding’ (as defined).  For the purposes of s 55(b), I am not satisfied that there are ‘reasonable grounds’ for the proposed proceeding.  In fact, I am positively of the view that the proposed proceeding would be futile and doomed to fail and would therefore be an abuse of process.  Leave to proceed must be refused and the application must be dismissed.

1. I turn first to the proposed order stated in paragraph 1 of the initiating document.

1. On Mr Knight’s own material, the administrative decision sought to be impugned was made by the Major Offenders Unit on 10 October 2018 at its annual review of Mr Knight’s classification and placement.  It may safely be inferred that the annual review of 10 October 2018 has now been superseded by a subsequent annual review (presumably held in or about October 2019).  There is nothing to suggest that it matters anymore whether ‘proper and realistic consideration’ was given to the merits of Mr Knight’s case for re-classification and a new placement in 2018.  The most that Mr Knight could have achieved in his proposed proceeding (had it been duly instituted and duly prosecuted) was a quashing (by an order in the nature of certiorari) of the 2018 decision, and, if sought, an order in the nature of mandamus requiring that the 2018 decision be reconsidered according to law. But Mr Knight’s classification and placement has by now been reconsidered by the Major Offenders Unit in any event. Hence any order of the kind stated in paragraph 1 of the orders sought would now be futile. At the very least, I am not satisfied that it would not be futile.

1. Even if that were not so, the application still falls to be dismissed, insofar as it relates to paragraph 1 of the orders sought, for want of any evidence or other material to support the proposition that the Major Offenders Unit ‘failed to give a proper and realistic consideration of the merits of [Mr Knight’s] case when it decided on 10 October 2018 that [he] remain at Port Phillip Prison as a Maximum Security rated prisoner’. The material filed by Mr Knight in Knight v Cassar includes an affidavit originally dated 30 October 2018 but re-affirmed on 4 April 2019. The affidavit is 241 pages long. However, only five paragraphs could be said to relate in any way to the decision of the Major Offenders Unit of 10 October 2018, namely, paragraphs 233 to 237 (inclusive). Those are the only paragraphs that appear under the heading ‘Cause of Action’. In paragraph 233, Mr Knight refers to every prisoner’s right under s 47(1)(l) of the Corrections Act1986 (Vic) to be classified in accordance with that provision as soon as possible after being sentenced ‘and to have that classification reviewed annually’. In paragraph 234, Mr Knight deposes that, on 26 April 2018, he wrote to the then acting Commissioner of Corrections, Mr Wise, seeking a reduction of his security rating from A2* Maximum Security to B* Medium Security, and a transfer from the Maximum Security PPP to the Medium Security Ravenhall Correctional Centre. He deposes that he did not receive a response to that letter. In paragraph 235, Mr Knight deposes that on 31 July 2018, he wrote to Dr Cassar, as the Commissioner for Corrections, seeking the same things. A copy of the letter is exhibited. The letter contains some short representations based in part on the suggestion that the requested changes would assist Mr Knight to demonstrate, for the purposes of s 74AA(3)(a)(ii) of the Corrections Act1986 (Vic), that Mr Knight does not pose a risk to the community so far as his release on parole is concerned. I will return to that matter in due course. In paragraph 236 of the affidavit, Mr Knight deposes that the Acting Deputy Commissioner, Operations, of Corrections Victoria, Mr Brendan Money, wrote to him in response to his letter of 31 July 2018 and said:

Regarding your security rating, I would advise that you discuss this matter with the Major Offenders Unit Panel at your next quarterly review.

It is desirable to set out the whole of paragraph 237 of the affidavit.  It reads:

On 10 October 2018, I had my classification and placement subjected to an annual review conducted by Corrections Victoria’s Major Offenders Unit (‘MOU’).  This review was headed by acting Deputy Commissioner, Operations, Mr Brendan Money.  I raised my requests to have my Security Rating lowered and to transfer to the Ravenhall Correctional Centre.  The decisions of the MOU were that my Security Rating remain as A2 *Maximum Security and that I remain at Port Phillip Prison.

1. There is nothing else of relevance in the affidavit or in any other material filed or relied on by Mr Knight in Knight v Cassar.  Plainly, the five paragraphs in the affidavit (and the exhibit) do not support Mr Knight’s proposed claim that there was a failure on the part of the Major Offenders Unit to give proper and realistic consideration to the merits of Mr Knight’s requests.

1. Having regard to and applying the principles relating to litigants without legal representation stated in Roberts v Harkness,[77] it is neither necessary nor appropriate to give Mr Knight a further opportunity to file evidence in support of the relief he would claim under paragraph 1 of the initiating document in Knight v Cassar. Mr Knight has represented himself in the overwhelming majority of his multifarious applications to this Court and to other courts and tribunals. He may not be legally qualified, but he is highly intelligent, highly articulate and immensely experienced in litigation. The relevant Court files indicate that he is in regular contact with the Prothonotary or other Registry staff of this Court. Although he frequently brings claims that he must know have little or no legal or other merit, he knows more about the substantive law relevant to claims by prisoners than many Australian lawyers do, and he is very familiar with the law and practice relating to civil procedure generally and to vexatious proceedings in particular. As indicated above, he has been the subject of two painstaking general examinations by this Court of his litigious behaviour, each of which led to a detailed judgment in which he was found to be a vexatious litigant and to consequential orders. Those judgments speak volumes. As mentioned above, Mr Knight has made and litigated numerous applications for leave to proceed under the former s 21 of the Supreme Court Act 1986 (Vic) and numerous applications under s 54 of the VPA for leave to commence a proceeding or for leave to make an interlocutory application within such an application, as well as many other applications to courts and tribunals in Australia.  He has obviously read many judgments of this Court relating to his matters.  He has known for over five years what the VPA and the Rules of this Court require an applicant to do in relation to an application for leave to proceed under the Act. In particular, he knows that, under s 55 of the Act, the burden is on the applicant to satisfy the Court that the proposed proceeding is not a ‘vexatious proceeding’ (as defined) and that there are ‘reasonable grounds’ for the proceeding.[78] Further, he knows that an application to this Court under s 54 for leave to proceed must be made by filing a document in accordance with Rule 83.04 and Form 83E of the Rules. He has used Form 83E many times. He knows that Form 83E requires the applicant to set out in numbered paragraphs the ‘reasonable grounds’ for the proposed proceeding that are claimed to exist. He knows that Rule 83.04 and Form 83E, read together, require that the completed Form 83E, when filed, be accompanied by an affidavit that includes the details required by s 56 of the Act, including details of all previous applications for leave to proceed or to commence or continue a proceeding made by the applicant; details of each interlocutory application made or proceeding commenced or conducted by the applicant that has been found to be vexatious; an explanation as to how the current application for leave to proceed is materially different to each of the previous applications listed; and, importantly for present purposes, all of the facts material to the application (whether in support of or adverse to the application) that are known to the applicant. He therefore knows that an application to this Court for leave to proceed should be comprehensive and should speak for itself from the outset; and that this is confirmed by s 57 of the Act, under which the Prothonotary of the Supreme Court may refuse to accept an application for filing or lodgement if not satisfied that it is materially different from a previous application made by the applicant. Mr Knight knows that, under s 58 of the Act, the Court itself may dismiss an application for leave to proceed made by a person if not satisfied that the application is materially different from a previous application made by the person. He knows that, by virtue of ss 59 and 60 of the Act, so far as relevant, a person who makes an application to this Court for leave to proceed must not give notice of the application to any person named in the application unless the Court otherwise directs or orders. He knows that s 63 of the VPA provides, in effect, that applications to this Court for leave to proceed may be determined by the Court on the basis of written submissions without any appearances, and that an oral hearing may only be held if the Court considers that there are exceptional circumstances and that it is appropriate to do so, having regard to the interests of justice.  He knows that one of the purposes of those provisions is to shield proposed defendants or respondents from any need to deal with a proposed claim unless and until the relevant court or tribunal is satisfied that the application should proceed.[79]

   [77]Roberts v Harkness (n 59) [46]-[68], esp at [47]-[50].

   [78]See definition of ‘vexatious proceeding’ para: VPA (n 25) ss 3, 55. The substantive and procedural requirements of the Act itself are the same in relation to applications for leave to proceed made to any other Victorian court or to a Victorian tribunal.

   [79]Clearly enough, even if the court or tribunal is satisfied for the purposes of s 58 of the VPA (n 25) that the application is materially different to a previous application made by the person, the court or tribunal is not required to determine that the application should proceed.  There may be other reasons why the court or tribunal considers that the application should not proceed.

1. It is true that, for some reason not disclosed by the file, the proposed respondent, Dr Emma Cassar, has recently come into the matter. She was represented at a directions hearing before Daly AsJ on 3 March 2020. On that day, her Honour ordered that the further hearing of Mr Knight’s application under s 54 be adjourned to a date to be fixed not before 12 March 2020 and ordered that the parties’ costs be reserved. As I have already mentioned, the intention was to defer any further steps in Knight v Cassar until after the determination of Knight v Sellman.  The only other thing that has happened since in Knight v Cassar is the filing of a notice of appearance by Dr Cassar on 16 March 2020.  However that may be, in my opinion, Mr Knight’s proposed claim for an order in the nature of certiorari against Dr Cassar should not be permitted to proceed any further.  In matters arising under the Act, the content of the (flexible) rules of natural justice or procedural fairness is to be discerned, and those rules are to be applied, in a manner that is not inconsistent with the relevant provisions of the VPA and the Rules.[80]  In the filing of his application and accompanying affidavit in Knight v Cassar, Mr Knight has had a reasonable opportunity to show, for the purposes of s 55(b) of the Act, that there are reasonable grounds for the proposed proceeding in so far as it would be claimed in the proceeding that, in October 2018, the Major Offenders Unit failed to give ‘proper and realistic consideration’ to the merits of his case for re-classification and for a new prison placement.  As a matter of procedural fairness, he is entitled to no more than such an opportunity.[81] He has not shown what he was required to show for the purposes of s 55(b) of the Act.

   [80]See Kioa v West (1985) 159 CLR 550, 609-616 (Brennan J); Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, 94-5 [129]-[130] (McHugh J); Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; Condon v Pompano Pty Ltd (2013) 252 CLR 38, 99 [156] (plurality); Roberts v Harkness (n 59) [50]; Judicial Review of Administrative Action (n 73) [7.280].

   [81]See Sullivan v Department of Transport (1978) 20 ALR 323, 343 (Deane J); Ex parte Lam (n 76) 14 [37] (Gleeson CJ); Roberts v Harkness (n 59) [47].

1. Further, as already mentioned, any order in the nature of certiorari in respect of the 2018 decision of the Major Offenders Unit would be futile. That alone would be sufficient reason to dismiss Mr Knight’s application insofar as it relates to paragraph 1 of the initiating document. When both deficiencies are considered, it is all the more apparent that the application for leave should not be further entertained insofar as it relates to that paragraph.

1. I turn now to the proposed claim for a declaration as set out in paragraph 2 of the orders sought, namely a declaration that Dr Cassar (as the Corrections Commissioner) has a statutory obligation to prepare Mr Knight for release on parole pursuant to s 74AA(3)(a)(ii) of the Corrections Act1986 (Vic). This proposed claim is manifestly absurd and hopeless, as appears from a reading of s 74AA as a whole:

Conditions for making a parole order for Julian Knight

(1)The Board must not make a parole order under section 74 in respect of the prisoner Julian Knight unless an application for the order is made to the Board by or on behalf of the prisoner.

(2)       The application must be lodged with the secretary of the Board.

(3)After considering the application, the Board may make an order under section 74 in respect of the prisoner Julian Knight if, and only if, the Board—

(a)is satisfied (on the basis of a report prepared by the Secretary to the Department) that the prisoner—

(i)is in imminent danger of dying, or is seriously incapacitated, and as a result he no longer has the physical ability to do harm to any person; and

(ii)has demonstrated that he does not pose a risk to the community; and

(b)is further satisfied that, because of those circumstances, the making of the order is justified.

(4)The Charter of Human Rights and Responsibilities Act 2006 has no application to this section.

(5)Without limiting subsection (4), section 31(7) of the Charter of Human Rights and Responsibilities Act 2006 does not apply to this section.

(6)In this section a reference to the prisoner Julian Knight is a reference to the Julian Knight who was sentenced by the Supreme Court in November 1988 to life imprisonment for each of 7 counts of murder.

1. The tenor of every provision in s 74AA is negative and restrictive in relation to the prospect of the release of Mr Knight on parole. Contrary to Mr Knight’s case, s 74AA(3)(a)(ii) does not, expressly or impliedly, impose a duty on anyone to do anything to advance Mr Knight’s prospects of parole. Much less does it impose, or imply that there is, a duty on the Corrections Commissioner to prepare Mr Knight for parole. Mr Knight’s proposed claim for a declaration that the Corrections Commissioner has a statutory obligation to prepare him for release on parole pursuant to s 74AA(3)(a)(ii) of the Corrections Act 1986 (Vic) is baseless and doomed to fail. It should not be entertained any further.

1. For these reasons, Mr Knight’s application in Knight v Cassar (S ECI 2018/03024) will be dismissed.

Knight v Sellman (S ECI 2020/00990)

1. As mentioned above,[82] Knight v Sellman is, in essence, an application for leave to seek orders that PPP give Mr Knight access, or greater access, to a certain computer or to certain computer files.  Once again, Mr Knight has had a reasonable opportunity to persuade the Court that he should have leave to commence the proposed proceeding.  He has failed to persuade me.  Quite the contrary.  As I will explain, I am not satisfied that the proposed proceeding would not be an abuse of the process of the Court.  Hence I am not satisfied that it would not be a ‘vexatious proceeding’, for the purposes of s 55(a) of the Act.[83]  Therefore, pursuant to s 55 of the Act, I must dismiss the application.  Nor am I satisfied, for the purposes of s 55(b) of the Act, that there are ‘reasonable grounds’ for the proposed proceeding.  For that reason, too, I must dismiss the application.  Indeed, I am positively satisfied that the proposed proceeding would be an abuse of the process of the Court and that there are no reasonable grounds for the proposed proceeding.  Further, there is at least considerable overlap between the application in Knight v Sellman and previous applications for leave made by Mr Knight.  For that reason, and by reason of events subsequent to the commencement of the application, and for other reasons to be mentioned, the application would, in any event, fall to be dismissed in the exercise of the Court’s general discretion under the Act.[84]

   [82]See paragraph [4] of this judgment.

   [83]See definition of ‘vexatious proceeding’ para (a): VPA (n 25) s 3.

   [84]‘may grant… leave…’: VPA (n 25) s 55; Interpretation of Legislation Act1984 (Vic) s 45.

1. As to Mr Knight’s opportunities to persuade the Court that leave should be granted, I refer again to Mr Knight’s experience and capacities, and to his knowledge of the relevant substantive and procedural law, as indicated in paragraph 45 above.  I refer again also to the tenor and policy of the relevant provisions of the Act.  Against that background, I turn first to the genesis of the application in Knight v Sellman; then to its procedural history (including the evidence adduced and the submissions made); and finally to its determination.

The genesis of Knight v Sellman

1. On 24 January 2020, about four weeks before the application in Knight v Sellman was filed, Mr Knight wrote a letter to Daly AsJ, with a copy to Ms Debra Coombs of the Victorian Government Solicitor’s Office. Ms Coombs had apparently been handling various matters relating to Mr Knight on behalf of Victorian State entities.  The subject of the letter was stated to be seven listed applications by Mr Knight for leave to proceed, each of which was then pending in this Court.  The list was comprised of the three applications of 2013 referred to above, the three other applications referred to above, namely, Knight v Cassar, Knight v The Queen and Knight v Assafiri, and one other matter, Knight v Castle (S ECI 2018/03023).  Knight v Castle was then the subject of a reserved judgment.  Subsequently, on 17 February 2020, the Honourable Justice Moore gave judgment in Knight v Castle, dismissing the application.  I will return to his Honour’s judgment in due course.

1. In the letter of 24 January 2020, Mr Knight claimed that he was unable to ‘prosecute’ any of the seven proceedings ‘due to the actions of Port Phillip Prison management’.  He referred to directions that had been given by Daly AsJ on 29 August 2019 setting down the three applications of 2013 for hearing during 2020.  He said that from 8 December 2017 to 21 November 2019 he had had access to a prison-issue laptop computer.  He said that this computer contained the ‘only copies’ of his electronic legal and personal files.  He said that after 21 November 2019, PPP management and Corrections Victoria decided to ‘withdraw access to the computer (and the files on it)’.  He said that their stated reason for doing so was that, as his proceedings were civil in nature (including his application in Knight v The Queen), ‘they are under no obligation to assist [his] access to the Court’. He also claimed that his ‘repeated requests’ to regain access to the computer, or to be lent the computer on a temporary basis and to have all of his files copied onto DVDs, had been denied or ignored. Mr Knight further claimed that even if his files were copied onto discs, he would have nowhere to save new or amended files. He said that he had raised these issues with the Prothonotary and requested an oral hearing ‘under s 63 of the Vexatious Proceedings Act 2014’, but that his request had been refused on the ground that it was not ‘urgent’.  He submitted that his position was exactly that described as a hypothetical one by Gillard J in Rich v Groningen.[85]  He concluded by saying that, in light of ‘current circumstances’, he requested a directions hearing in relation to the three applications of 2013, and to be heard on an application for interlocutory relief directed towards the ‘release’ of his files.  Mr Knight attached to the letter a ‘further affidavit’ of his dated 21 January 2020 which was headed in, and which was intended to be filed in, the abovementioned proceeding of Knight v Castle in which judgment by Moore J then stood reserved.  The exhibits to that affidavit (‘JK-10’ to ‘JK-20’) were also attached to the letter.

   [85](1997) 95 A Crim R 272, 287 (‘Rich v Groningen’).

1. On 10 February 2020, the Associate to Daly AsJ responded in writing to Mr Knight’s letter of 24 January 2010.  The Associate reported that her Honour:

·noted that Mr Knight was not required to take any steps in any of the proceedings filed in 2013 until May 2020 and August 2020, and that those steps would only involve providing submissions in reply to submissions which had not yet been made;

·would arrange for copies to be made of all of the court documents in the proceedings filed in 2013 and for the copies to be mailed to Mr Knight to assist him to prepare for those matters;

·suggested, in relation to the balance of the proceedings, that Mr Knight file and serve an application identifying the files that he sought to have provided to him with some degree of precision;

·indicated that Mr Knight’s affidavit of 21 January 2020 could be treated as an affidavit in support of an application to the Court for an order that Mr Castle[86] provide or make available the files that Mr Knight sought; and

·indicated that her Honour would consult with Judicial Registrar Clayton regarding a date for the application to be listed.

[86]In fact, Mr Castle had been replaced by Ms Sellman as General Manager of PPP on 26 July 2019.

1. It appears that this exchange led to the initiation of the proceeding now known as Knight v Sellman.  The new proceeding was initiated on 17 February 2020 when Mr Knight filed a document purporting to be in accordance with Form 83E, together with a copy of his ‘further affidavit’ of 21 January 2020 and copies of the exhibits to that affidavit.  The initiating document in Knight v Sellman did not fully accord with Form 83E.  It did not set out the asserted ‘reasonable grounds’ for the proposed proceeding.  Instead, in the place where those grounds should be set out, only the following statement appeared:

1.        The facts support the making of the orders sought.

1. In the initiating document, under the heading ‘Orders Sought’, the following appeared:

The applicant seeks –

1.A mandatory injunction directing the General Manager of Port Phillip Prison to give the applicant access to the prison-issued laptop computer that the applicant had access to from 8 December 2017 to 21 November 2019, or

2.A mandatory injunction directing the General Manager of Port Phillip Prison to copy the applicant’s files contained in his account on the laptop computer that he was given access to from 8 December 2017 to 21 November 2019, and provide them to the applicant.

The word ‘or’ between paragraphs one and two of the orders sought is noteworthy.  The proposed claim was for one thing or the other, not both.

1. The initiating document, being based on a printed form, also asserted that the application was accompanied by an affidavit disclosing the details required by s 56 of the Act. That assertion was inaccurate. As I have already indicated, the accompanying affidavit was Mr Knight’s affidavit of 21 January 2020 (and its exhibits). That affidavit did not answer the description in the initiating document in that it did not include all of the details required by s 56 of the Act. For example, it did not purport to show that the present application was materially different from each and every one of those previous applications. Nevertheless, in accordance with the indication that had been given by Daly AsJ, the Registry accepted the affidavit (and its exhibits) for the purposes of the new proceeding.

Mr Knight’s affidavit of 21 January 2020

1. In his affidavit of 21 January 2020, Mr Knight refers, in paragraph 1, to his five previous affidavits filed in Knight v Castle.  In paragraph 2, he mentions that Mr Castle had been replaced by Ms Sellman.  In paragraph 3, he notes the date (17 August 2017) on which the High Court dismissed his constitutional challenge.  In paragraphs 4-21, he sets out a chronology of alleged events from 29 November 2017 to 31 December 2019.  I turn first to that chronology, with some added comments or elaborations by me (either in the body of this judgment or in footnotes) that are separately identifiable.

1. On 29 November 2017, (Mr Knight deposes) a major fire occurred in the control room of PPP.  The prison was in total or partial lockdown for five weeks after the fire.[87]

   [87]Affidavit of Julian Knight of 21 January 2020 [4] (‘Mr Knight’s affidavit of 21 January 2020’).

1. On 7 December 2017, emails were exchanged between the proposed defendant, Ms Sellman, who was the then Deputy General Manager of PPP, and the then Deputy Commissioner, Custodial Operations, of Corrections Victoria, Mr Wise.[88]  The emails concerned an agreement for PPP to issue to Mr Knight a laptop computer on an in-cell basis in order ‘to allow [Mr Knight] to adequately prepare for his court cases’.  Three of those cases were the applications of 2013 that, as of January 2020, were listed for hearing later in 2020.  In the email exchange, Mr Wise noted ‘that these special arrangements will cease once normal operations have been restored’.  However, according to Mr Knight, normal operations were never restored at the prison library.

   [88]Ibid [5].

1. On 8 December 2017, Mr Knight was issued with a Dell Latitude E6410 laptop computer and two CD-Rs containing copies of all the files that were stored in his PC computer account on the PPP library computer server.  Concurrent with the issue of the computer, he was ‘made’ to sign a ‘Short-term Computer Access Agreement’ dated 8 December 2017.  A copy of the agreement is exhibited.  For the following five weeks, Mr Knight had access to the computer on a full time, in-cell basis.[89]

   [89]Ibid [6].

1. On 15 January 2018, the laptop computer was removed by prison management.[90]

   [90]Ibid [7].

1. On 16 January 2018, Mr Knight was told that he could access the laptop computer at the prison library for two hours on Tuesday afternoons and two hours on Thursday afternoons.  Concurrent with that instruction, he was ‘made’ to sign a new Computer Access Agreement.  A copy of the agreement dated 16 January 2018 is exhibited.  This arrangement existed until 21 November 2019.[91]

   [91]Ibid [8]. On the other hand, Ms Sellman says that the arrangements varied over this period – see below.

1. On 29 October 2018, Mr Knight was ‘made’ to sign a new agreement entitled ‘Computer Access for Legal Preparation – (Agreement)’.  This agreement stated that Mr Knight’s ‘access to the laptop computer will continue as per [his] previous agreement dated 16 January 2018 with some additional amendments, in order to assist [him] in preparing for pending legal cases’.  A copy of the agreement dated 29 October 2018 is exhibited.[92]

   [92]Ibid [9].

1. On 1 May 2019, Mr Knight submitted a list of authorities in relation to Knight v Castle.  A copy is exhibited.[93]

   [93]Ibid [10]. I observe that 33 cases are listed. They are cases from the High Court, the Federal Court and the Supreme Court of Victoria, including a category of Supreme Court cases involving Mr Knight’s access to a computer (13 cases), as well as cases from the United Kingdom and the USA.

1. On 30 October 2019, the Commonwealth Administrative Appeals Tribunal (AAT) gave certain directions in a proceeding in which Mr Knight was an applicant, namely, Knight v Commonwealth Ombudsman.  That proceeding was a combination of two applications for review, each begun by Mr Knight in 2017.  The AAT had, at one stage, adjourned the proceeding pending the outcome of Knight v Castle.  Later, Mr Knight asked the AAT to set the matter down for hearing.  In consequence, on 30 October 2019, as just mentioned, the AAT issued directions, including a direction that Mr Knight was to file various documents by 20 January 2020.  However, in the meantime, Mr Knight wrote to the AAT to again request an adjournment given the ‘seizure’ of the laptop computer that he was using, and the files contained on it, by prison management.[94]

   [94]Ibid [11].

1. On 19 November 2019, Deputy Commissioner Wise wrote to Mr Knight in relation to his repeated requests to have greater computer access to prepare for current court and tribunal proceedings.  A copy of Mr Wise’s letter is exhibited as Exhibit JK-16.  In the letter, Mr Wise tells Mr Knight that he had asked Ms Sellman (by then the general manager of PPP) to review the current arrangements regarding Mr Knight’s access to the laptop.[95]  I note that, although not referred to by Mr Knight in the affidavit, the following two paragraphs are contained in the letter to him from Mr Wise dated 19 November 2019:

I understand from Ms Trish Sellman, General Manager, Port Phillip Prison, that you continue to access a dedicated monitored laptop for legal purposes and a process is in place to print any required documentation by your Area Manager.  When you had possession of approved USBs you uploaded data to a library computer and, I am told, repeatedly attempted to obtain copies of your crime scene photographs despite clear instructions not to do so without prior arrangement.  This caused some significant distress to the Education Coordinator who innocently opened the file to arrange printing, only to be confronted with the graphic photos without warning….

I understand that Port Phillip Prison has purchased two dedicated computers for prisoner use to review legal material.  These are bookable via Government Functions.

The contents of those two paragraphs have not been disputed by Mr Knight.

[95]Ibid [13].

1. There is (Mr Knight points out) a factual mistake in Mr Wise’s letter of 19 November 2019 about the order of events as between the date (17 August 2017) of the finalisation of Mr Knight’s High Court matter and the date (8 December 2017) of the ‘Short-Term Computer Access Agreement’.[96]

   [96]Ibid [13].

1. On 21 November 2019, Mr Knight was permitted to use the laptop computer for the last time.[97]

   [97]Ibid [14].

1. Paragraph 15 of Mr Knight’s affidavit should be set out in full.  It reads:

On 29 November 2019 I was informed that prison management had decided I would no longer have access to the laptop because all of my proceedings are civil in nature.  I explained that one of my Supreme Court proceedings – Knight v The Queen (S ECI 2018 03025) – was a belated appeal against conviction and sentence out of time.  I was told that this was considered to be civil in nature because I must first obtain leave as a vexatious litigant in order to file my appeal.

I note that Mr Knight does not identify any particular representative of ‘prison management’ in relation to this alleged exchange.  Nor does he say whether the alleged exchange was oral or in writing.

1. On 1 December 2019, Mr Knight submitted a prisoner request form for continued access to the laptop computer in order ‘to enable preparation for known legal cases’.  This request was ‘not approved’ by PPP Deputy General Manager Ali Assafiri on 4 December 2019.[98]

   [98]Ibid [16].

1. On 6 December 2019, Mr Knight submitted another application for access to a personal computer, but the application was not processed.[99]

   [99]Ibid [17].

1. On 11 December 2019, Miss Isabelle Skaburskis of Doogue + George Defence Lawyers, a solicitor acting for Mr Knight, wrote to the General Manager of PPP in support of Mr Knight’s request for ‘access to an in-cell computer’.  The basis of this support was Mr Knight’s ‘pending submission of a communication to the UN’s Human Rights Committee.’  A copy of the letter of Ms Skaburskis of 11 December 2019 is exhibited.[100]  I observe that it is very general in nature and very short.  It simply says:

1. Further, as a trial judge of this Court, I must follow and apply the judgment of the Court of Appeal of New South Wales in Liristis unless it is relevantly distinguishable or I am convinced that it is plainly wrong.[243]  In my view, Liristis is not relevantly distinguishable insofar as it relates to the question whether this Court has jurisdiction to entertain a claim for an injunction based on an alleged free-standing common law right of access to the courts.  And I am certainly not of the view that Liristis is plainly wrong.  Indeed, in my respectful view, it is correct, and it is applicable to this case.  Hence, this Court would have no jurisdiction to entertain Mr Knight’s proposed claim for an injunction insofar as it would be based on an asserted free-standing ‘common law right of unimpeded access to the courts’.

   [243]Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 151-2 [135]; Edwards v State Trustees Ltd (2016) 54 VR 1, [147].

2. As indicated above, Mr Knight refers not only to the common law, but also to the Charter as sources of the ‘right’ he seeks leave to endeavour to enforce.[244]  Mr Knight’s reference to the Charter is a passing one.  He does no more than mention it.  He does not refer to any of the Australian jurisprudence relating to the Charter.  Nor has he given notice of a Charter point to the Attorney-General or to the Victorian Equal Opportunity and Human Rights Commission pursuant to s 35 of the Charter.  The only section of the Charter referred to by Mr Knight is s 24.  So far as may be relevant, s 24 provides:

   [244]Mr Knight’s written submissions of 24 April 2020 [56], referred to in [180] of this judgment above.

   24.      Fair hearing

   (1)A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

   …

3. Despite the passing nature of Mr Knight’s reference to the Charter, I will, having regard to certain Victorian authorities not cited by Mr Knight, especially Bare v Independent Broad-Based Anti-corruption Commission (‘Bare’),[245] Certain Children v Minister for Families and Children,[246] Certain Children v Minister for Families and Children (No 2)[247] and Rich v Howe,[248] assume in favour of Mr Knight, without deciding, that the ‘fair hearing’ human right recognised in s 24(1) of the Charter includes ‘the right of access to the courts’,[249] and that this ‘right’ is potentially enforceable against a public authority in accordance with ss 38 and 39 of the Charter in the same way as other human rights recognised in the Charter may be enforced against a public authority, even by way of injunction, and this notwithstanding the limitations on the enforcement of the corresponding common law ‘right to a fair trial’ and ‘right of access to the courts’ identified in Dietrich, Liristis, and Proudfoot as discussed above, and notwithstanding that in Bare itself Tate JA said that the s 24(1) human right ‘reflects that protected by the common law’.[250]

   [245](2015) 48 VR 129 (Court of Appeal) (‘Bare’).

   [246](2016) 51 VR 473, 516 [228], 537-8 [321(6)] (Garde J); affd Minister for Families and Children v Arthur (2016) 51 VR 597, 599 [5], 601 [17], 623 [105]-[107] (Warren CJ, Maxwell P, Weinberg JA).

   [247](2017) 52 VR 441, [550], [553], [556], [583]-[586] (John Dixon J).

   [248]Rich v Howe (n 209) [86]-[171] (Kennedy J).  But see the concessions recorded by Kennedy J at [88]-[89] and the assumption made by her Honour at [90]. Her Honour referred at [94] to Slaveski (n 201). That was a decision of the Court of Appeal on a referral to it of a question of law under s 33 of the Charter (n 198) by the County Court in relation to an appeal from the Magistrates’ Court in a criminal proceeding. The Court of Appeal held at [58] that, in the first instance, it was a matter for the County Court Judge to determine whether the Judge would be warranted by s 24(1) of the Charter (or at common law) in staying the appeal until legal representation was provided for the accused.

   [249]Bare (n 245) 250 [375].

   [250]Ibid 250 [375] fn 328. Cf Islam v Director-General, Department of Justice and Community Safety Directorate [2018] ACTSC 322 [30] (McWilliam AsJ) in relation to the Human Rights Act 2004 (ACT).

4. Nevertheless, as Basten JA noted in Liristis,[251] the human rights recognised in the Charter are subject to ‘reasonable limits’ as provided in s 7(2) of the Charter. Section 7(2) provides:

   [251]Liristis (n 206) 129 [69], replicated at [197] of this judgment.

   (2)A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including:

   (a)the nature of the right; and

   (b)the importance of the purpose of the limitation; and

   (c)the nature and extent of the limitation; and

   (d)the relationship between the limitation and its purpose; and

   (e)any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

   Hence, like the corresponding common law ‘right’, the human right recognised by s 24(1) of the Charter will always be qualified in substantial respects in relation to a prisoner, particularly by the need for enforcement of security in a custodial environment.

5. In any event, an injunction to enforce Mr Knight’s asserted common law ‘right’ or to enforce his asserted human right under s 24(1) (and ss 38 and 39) of the Charter would not be granted without a proper factual foundation.  Any such factual foundation is entirely absent here.  That is effectively admitted by Mr Knight, insofar as he is driven to submit, as he does, that the least hindrance that he may suffer in his ability to prepare or advance his cases should lead to injunctive intervention by this Court; and insofar as Mr Knight is driven to submit, as he does, that the Victorian authorities (which mainly relate to Mr Knight himself) that he sees as standing in his way are ‘wrong’ in that they do not ‘start the process of examining whether the right has been infringed from the “total access” end of the spectrum’.[252]

   [252]Mr Knight’s written submissions of 24 April 2020 [44]-[45], replicated at [173] of this judgment.

6. Incidentally, I note that the two Canadian cases to which Mr Knight refers in this regard,[253] were both contempt cases.  It may well be that a mere obstruction or partial interference with access to a place protected by a court order or to a court itself will amount to a contempt of court, depending on all the circumstances.[254]  On the other hand, to establish a contempt of court may necessitate proving or disproving many things other than a restriction of access to the protected place or the court.  However that may be, the Canadian cases cast no doubt on the proposition that any common law right of unimpeded access to the courts, or, for that matter, any Charter right, is not absolute and is subject to any relevant statutory provisions and to administrative decisions lawfully made pursuant to such statutory provisions.[255]  The relevant statutory provisions include the provisions of the VPA itself.[256]  The same comments apply to Raymond v Honey[257] and the other international cases cited by Mr Knight.  In any event this Court must of course follow and apply the law of Australia (including the law of Victoria), not the law of any other jurisdiction.

   [253]British Columbia Government Employees Union v Attorney-General of British Columbia [1988] 2 SCR 214; R v Gordon (1988) 130 CCC (3d) 129.

   [254]See, for example, my judgment in Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] VSC 275; (2013) 234 IR 59, 102 [336]; Brown v Tasmania (2017) 261 CLR 328, 453-4 [388]-[389].

   [255]Kay v A-G (Vic) (Court of Appeal, Nettle JA and Coghlan AJA, 19 May 2009) [11]-[13] (Nettle JA, with whom Coghlan AJA agreed); quoted in A-G (Vic) v Kay [2009] VSC 337 [12] (Cavanough J).

   [256]Ibid.

   [257]Raymond v Honey (n 216).

7. Returning to the absence of any factual foundation for an injunction, I note that Mr Knight makes no or no proper allowance for what Basten JA refers to as ‘the need for enforcement of security in a custodial environment’.[258]  Mr Knight ignores or understates the right and responsibility of Ms Sellman to exercise her judgment as to how best to manage access to computer and other resources in PPP and as to the extent, if any, of Mr Knight’s reasonable requirement for access to a computer.  Mr Knight ignores or understates his own history of abuse of computer access.  He does not recognise that Ms Sellman was, and this Court would be, entitled to take into account the vexatiousness of Mr Knight’s actual past and present litigious behaviour, whether or not Mr Knight’s ‘status’ as a declared vexatious litigant is relevant.[259]

   [258]Liristis (n 206) 129 [69].

   [259]See Knight v Wise (n 27) [32]-[43] (Emerton J), especially at [41]. Cf Commissioner, Corrections Victoria v Knight (n 158) [16], [33].

8. Moreover, whatever may have been the situation between late November 2019 and February 2020, the evidence in this case demonstrates that Mr Knight has had ample access to computer resources and to his computer files in March and April 2020.  His ability to prepare and file his detailed written submissions dated 24 April 2020 in Knight v Sellman is, alone, sufficient testament to that.  Mr Knight’s ridiculous assertion that the prison library was only reopened in order to defeat the present case and two other cases may also be taken as confirmation that Mr Knight is not truly in need of any additional computer access.

9. Moreover, Mr Knight’s proposed claim is for computer access or for copies of the computer files, not both.  As shown in particular in certain italicised parts of Mr Knight’s own material as set out above, Mr Knight now admits that he has copies of all of the computer files, save only that he must seek permission from time to time to view and make use of the copies of the crime scene and autopsy photographs on the second disk.  That appears to be nothing but a minor quibble on Mr Knight’s part, unworthy of absorbing any more of the resources of this Court.

10. There are several additional or related reasons why Knight v Sellman should be dismissed.

11. First, Knight v Sellman is not the correct vehicle to advance any claim based on the common law right to a fair trial or on the common law right of access to the courts, as properly understood.  As explained in Liristis,[260] any such claim should be made to the court or judge responsible for the substantive matter.  That was established definitively in Liristis in relation to criminal matters.  And it seems to me that the logic of Liristis shows that the same applies with respect to civil matters. 

    [260]Liristis (n 206).

12. Second, because the human right to a fair trial (including the ‘right of access to the courts’) under s 24(1) of the Charter ‘reflects that protected by the common law’,[261] once again much the same should apply: any claim to enforce the Charter right should usually be made to the court or judge responsible for the substantive matter.

    [261]Bare (n 245) 250 [375] fn 328.

13. Thus Liristis[262] indicates that, while in 2010[263] in Knight v Hastings,[264] Robson J was prepared to entertain a free-standing claim by Mr Knight for an injunction for the grant of computer access, based on the existence of other proposed or pending civil applications, and relying on the asserted ‘common law right of unimpeded access to the courts’, such an approach should not now be followed.  However, that is not to say that the Court should not entertain an application by a person in Mr Knight’s position for leave to commence an application for judicial review of an administrative decision made by a correctional authority, including where the existence of other proposed or pending applications is relevant to the proposed application for judicial review of the administrative decision.[265]

    [262]Liristis (n 206).

    [263]Before the enactment of the VPA (n 25).

    [264]Knight v Hastings (n 134).

    [265]Commissioner, Corrections Victoria v Knight (n 158) [18], [25] (Nettle J), [27] (Maxwell P); Clark v Commissioner for Corrective Services [2016] NSWCA 186, [12]-[14] (Basten JA).

14. Third, in any event, the dismissal by me of the three applications of 2013 and of Knight v Cassar will obviously reduce any need Mr Knight might otherwise have had for access to computer facilities to deal with his other matters.

15. Fourth, as a corollary of the first and second points, insofar as Mr Knight has any basis to seek the intervention of this Court to obtain greater computer access for the purposes of his one remaining civil matter pending in this Court, namely Knight v Assafiri, Mr Knight can raise that claim before the judge to whom the matter has been allocated, namely Richards J, rather than rely upon it in Knight v Sellman.

16. Fifth, that leaves only one other civil matter that is actually pending, namely Mr Knight’s application for review in the AAT.[266]  Mr Knight has simply not provided any detail about that matter such as to suggest that its existence would be a proper reason for intervention on the part of this Court.  I note that the original applications by Mr Knight in the AAT were commenced in 2017.  In any event, Mr Knight can raise with the AAT itself any concern he may have with his ability to progress that matter.  In fact, Mr Knight has already done so, and has obtained adjournments as a result.

    [266]It seems from Mr Knight’s material that Ms Sellman was mistaken in her belief that there may also be a FOI matter pending at VCAT.

17. Sixth, Mr Knight refers to an intended application to a Human Rights Committee of the United Nations.  In that regard, he is legally represented.  There is nothing to suggest that his ability to progress his intention in that regard would be significantly inhibited by the current conditions of his imprisonment.

18. Seventh, there is Knight v The Queen, on which, as mentioned above, Mr Knight has placed particular – and ultimately exclusive – reliance in the course of Knight v Sellman.  The link between the two matters is the remaining issue about access to the 1998 photographs.  As I have said, that issue appears to be a mere quibble on Mr Knight’s part; and it appears to be an old, repeated quibble.

19. Knight v The Queen is an application under s 54 of the VPA for leave to commence an application under s 313 of the Criminal Procedure Act2009 (Vic) for an extension of time within which Mr Knight may file a notice of application for leave to appeal, under ss 274 and 278 of the Criminal Procedure Act2009 (Vic), against his conviction and sentence for the 1988 offences. At present, as indicated above, the hearing and determination of Mr Knight’s application under the VPA for leave to proceed is allocated to Richards J.  On 4 December 2019, her Honour published reasons for, among other things, dismissing an application made by Mr Knight for leave under the VPA to commence an application for an interlocutory order against the general manager of PPP that Mr Knight have access to the means of examining electronic legal files and producing court documents on a full-time basis (i.e. access to a computer on a daily in-cell basis).[267]  Her Honour was not persuaded by Mr Knight’s affidavit in that matter that his proposed interlocutory application was materially different from his numerous other proposed applications made in pursuit of his desire for access to a computer in his cell.  So, for substantially the same reasons as were given by Moore J in Knight v Wilson,[268] Mr Knight’s application for leave to proceed with the interlocutory application was dismissed.  Richards J then proceeded to examine further Mr Knight’s ‘substantive’ application for leave to bring a proceeding.  Her Honour commented that, on the material before her, the proposed proceeding under the Criminal Procedure Act2009 (Vic) appeared to be ‘hopeless’.[269]  Her Honour set out reasons why the proposed application appeared to be hopeless.  However, rather than dismissing the application for leave on the spot, Richards J gave Mr Knight an opportunity to consider her Honour’s reasons for judgment and to file any further material upon which he might wish to rely.

    [267]Knight v The Queen (n 7) [3], [9].

    [268]Knight v Wilson (n 52).

    [269]Knight v The Queen (n 7) [10].

20. Since then, as indicated above, Mr Knight has engaged in a series of interchanges with the management at PPP about the photographic images from the hand-up brief from his 1988 trial.  In effect, he has transferred his complaints in that regard to Knight v Sellman.  Mr Knight does have a form of access to those photographic images.  In accordance with Liristis,[270] if there is any issue remaining in that regard, it should be raised with the court which is to decide whether or not Mr Knight is to have leave under the VPA to commence his proposed application under s 313 of the Criminal Procedure Act 2009 (Vic) for an extension of time. At present, the court with that function is the Trial Division of this Court constituted by Richards J.

    [270]Liristis (n 206).

21. Further, without cutting across, much less foreclosing, how Richards J might deal with Knight v The Queen, I cannot refrain from noting that, under s 54 of the VPA, it is provided that, unless the relevant general litigation restraint order provides otherwise, an application for leave to proceed must be made to ‘the Victorian court or tribunal that would hear the proceeding to which the leave application relates’.  In Mr Knight’s case, the general litigation restraint order does not provide otherwise.  Indeed, as noted above, J. Forrest J specifically ordered that any application for leave be made to the court or tribunal that would hear the proceeding to which the leave application related.  Prima facie, it seems to me the Victorian court that would hear Mr Knight’s proposed application for an extension of time is the Court of Appeal, rather than the Trial Division of the Supreme Court.  If that be correct, then Mr Knight’s reliance here, in the Trial Division, in Knight v Sellman, on Knight v the Queen, is all the more misconceived. 

22. Finally, it is not necessary for me to form a concluded view, under s 58 of VPA, as to whether Knight v Sellman is ‘materially different’ from all previous applications made by Mr Knight.  As already mentioned, there certainly are many similarities to previous applications, at the very least.  The existence of those similarities tends strongly to indicate that even if, contrary to my opinion, the proposed proceeding in Knight v Sellman would not be an abuse of process, nevertheless it would not be appropriate to exercise the general discretion conferred by ss 54 and 55 of the VPA to grant leave to proceed.

23. For the many reasons identified above, Knight v Sellman must be dismissed.

    Conclusion

24. All five of the proceedings with which I am dealing will be dismissed.  In Knight v Sellman, for completeness, Mr Knight’s application for leave to bring the interlocutory application, referred to in the order made by Daly AsJ on 3 April 2020, will also be dismissed.

25. In all the circumstances, it seems to me that the costs of all the participants in the five matters (including any reserved costs) should lie where they fall.

26. Orders will be made accordingly and the authenticated orders will be despatched to the parties.