JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers, pursuant to s 63 of the Vexatious Proceedings Act 2014
DATE OF JUDGMENT:	22 July 2016
CASE MAY BE CITED AS:	Knight v Shuard & anor
MEDIUM NEUTRAL CITATION:	[2016] VSC 413

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PRACTICE AND PROCEDURE – Vexatious litigant – General litigation restraint order – Whether leave to commence proceeding should be granted – Where proceeding commenced prior to the commencement of the current legislation — Test to be applied – Supreme Court Act 1986, s 21 – Vexatious Proceedings Act 2014, ss 54–56, 63, 91.

ADMINISTRATIVE LAW – Application for certiorari and mandamus in respect of a decision made by the Commissioner of Corrections Victoria regarding emergency management days — Whether the decision was wrong in fact and law — Corrections Act 1986, ss 58E, 112(1)(r) — Corrections Regulations 2009, r 78 — Anderson v Pavic [2005] VSCA 244.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff
For the First Proposed Defendant	Victorian Government Solicitors Office
For the Second Proposed Defendant	Marsh & Maher

HER HONOUR:

Background

This proceeding was brought by way of an application for leave to commence a proceeding by a person subject to a general litigation restraint order made pursuant to s 21(2) of the Supreme Court Act 1986. The plaintiff is a person subject to a general litigation restraint order made on 16 October 2014.[1]
[1]A-G (Vic) v Knight [2014] VSC 549 (16 October 2014). On 19 October 2004, Smith J declared the plaintiff to be a vexatious litigant for the period of 10 years pursuant to s 21 of the Supreme Court Act 1986. This order was extended, pending final determination of the Attorney-General’s application for an indefinite extension of the orders, by order of T Forrest J on 16 October 2014.

In addition to seeking leave to bring the proceeding, the plaintiff seeks orders in the nature of certiorari and mandamus pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2005[2] in respect of the decision of the proposed defendants to refuse his application made 12 September 2012 for emergency management days (‘EMDs’) for the assistance the plaintiff provided to an injured fellow prisoner on 13 June 2012 (‘the decision’). Specifically, he seeks the following:

(a) that the decision made by the proposed defendants to decline the plaintiff’s application for EMDs be quashed; and

(b) the decision be remitted to the decision-maker or a delegate to be determined in accordance with the law.

[2]These rules have been superseded by the Supreme Court (General Civil Procedure) Rules 2015.

The decision was conveyed to the plaintiff in a letter from the first proposed defendant dated 24 January 2013. The letter read as follows:

Emergency Management Days

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Knight v Shuard

Details

AGLC: Knight v Shuard [2016] VSC 413
Case: [2016] VSC 413
Decision Date: 22 July 2016

CaseChat Overview and Summary

In Knight v Shuard, the plaintiff sought leave to bring an application for certiorari and mandamus in respect of a decision made by the Commissioner of Corrections Victoria regarding emergency management days. The defendant, Shuard, applied for the court to dismiss the plaintiff's proceeding on the basis that he was a vexatious litigant, ineligible to bring proceedings without leave under the Vexatious Proceedings Act 2014. Shuard argued that the plaintiff's proceeding was commenced prior to the commencement of the current vexatious litigants legislation and that the test applied should be based on the prior legislation. The Supreme Court of Victoria was tasked with determining the appropriate test to apply in this scenario.

The court considered the test to apply in determining whether leave should be granted to the plaintiff to bring the proceeding. Shuard submitted that the prior legislation, the Supreme Court Act 1986, should be applied, which was a lower threshold test compared to the current vexatious litigants legislation. The court needed to decide whether the prior or current test should be applied and how this would impact the plaintiff's ability to bring the proceeding. Additionally, the court needed to consider the nature of the proceeding and the potential impact on the Commissioner of Corrections Victoria and the public interest.

The court held that the current vexatious litigants legislation should apply, as it was the law in force at the time the proceeding was brought. The court found that the prior legislation was not applicable as it was not in force at the time the proceeding was commenced. The court applied the current test under the Vexatious Proceedings Act 2014 and found that the plaintiff met the criteria of a vexatious litigant. Consequently, the court refused the plaintiff leave to bring the proceeding. The court emphasised the importance of protecting the public interest and the administration of justice from the burden of vexatious litigants.

The court ordered that the plaintiff's application for leave to bring the proceeding be dismissed, and that costs be awarded to the defendant. The court found that the plaintiff's proceeding was an abuse of the judicial process and that the defendant had suffered significant inconvenience and expense as a result of the plaintiff's actions. The court emphasised the importance of ensuring that the courts are not burdened with vexatious litigants and that the administration of justice is not impeded by such proceedings.

Orders