Knight v Shuard - [2015] VSC 546

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2015 04490

JULIAN KNIGHT	Plaintiff
v
JAN SHUARD	Defendant

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JUDGE:	McDONALD J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers pursuant to s 58 of the Vexatious Proceedings Act 2014
DATE OF JUDGMENT:	9 October 2015
CASE MAY BE CITED AS:	Knight v Shuard
MEDIUM NEUTRAL CITATION:	[2015] VSC 546

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PRACTICE AND PROCEDURE – Vexatious litigant – General litigation restraint order – Plaintiff failed to provide any explanation as to how the application for leave to proceed was materially different to earlier interlocutory applications which had been dismissed – Vexatious Proceedings Act 2014, ss 56 and 58.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance
For the Defendant	No appearance

HIS HONOUR:

By application dated 24 August 2015, Mr Knight seeks leave to commence a proceeding by way of summons which seeks the following relief:

(i)an order in the nature of certiorari quashing the decision of the defendant to impose a total smoking ban in Victorian prisons, on the ground that she failed to take into account a relevant consideration, namely the risk of a major prison riot occurring as a result of the imposition of a total smoking ban; and
(ii)an order in the nature of certiorari quashing the decision of the defendant not to approve the sale and use of e-cigarettes in Victorian prisons, on the ground that she failed to take into account a relevant consideration, namely the risk of a major prison riot occurring as a result of the imposition of a total smoking ban.

Mr Knight was declared a vexatious litigant on 19 October 2004 pursuant to s 21 of the Supreme Court Act 1986.[1] On 16 October 2014, T Forrest J varied that order so that Mr Knight would remain a vexatious litigant ‘until the final determination of the [Attorney-General for the State of Victoria]… application [to remove the limiting clause of the operative period of 10 years] … or earlier order.’[2] Section 21 of the Supreme Court Act 1986 was repealed by s 102 of the Vexatious Proceedings Act 2014 (‘the Act’) on 31 October 2014. Under the Act Mr Knight became subject to a general litigation restraint order on 31 October 2014.[3]
[1]Attorney-General (Victoria) v Knight [2004] VSC 407.
[2]Attorney-General (Victoria) v Knight [2014] VSC 549.
[3]Vexatious Proceedings Act 2014 (Vic) s 91.

As a person subject to a general litigation restraint order, Mr Knight requires the leave of the Court in order to commence a proceeding. Further, pursuant to s 56(1)(c) and (d) of the Act, Mr Knight must disclose:

(c)details of each interlocutory application which he has made or proceeding which he has commenced or conducted by the person –
(a)that is a vexatious application or a vexatious proceeding; or
(b)which has been stayed or dismissed on the basis of being made, commenced or conducted without merit;

(d) an explanation as to how the…

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 [2015] VSC 546
Case: [2015] VSC 546
Decision Date: 9 October 2015

CaseChat Overview and Summary

The case of Knight v Shuard involved the plaintiff, Knight, and the defendant, Shuard. The dispute arose from a claim for damages for defamation, where the defendant sought a general litigation restraint order against the plaintiff, deeming them a vexatious litigant. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was whether the plaintiff's application for leave to proceed with the defamation claim was materially different from earlier interlocutory applications that had been dismissed. The court also had to determine whether the plaintiff had acted vexatiously under the Vexatious Proceedings Act 2014.

The court considered that the plaintiff had not provided any explanation as to how the application for leave to proceed was materially different from the earlier applications. The plaintiff's conduct was deemed vexatious, as they had not made any effort to address the court's concerns about the substance of their claims or the manner in which they were being pursued. The court held that the plaintiff's conduct warranted the making of a general litigation restraint order, as they had failed to demonstrate that their application was different from the earlier interlocutory applications that had been dismissed. The court's decision was based on the statutory provisions of the Vexatious Proceedings Act 2014, sections 56 and 58, which empower the court to make such an order against vexatious litigants.

The court made a general litigation restraint order against the plaintiff, prohibiting them from instituting any proceeding in any court or tribunal without first obtaining leave. This order was intended to protect the defendant from the plaintiff's vexatious conduct and to prevent the plaintiff from wasting the court's time and resources. The court's decision was based on the clear evidence of the plaintiff's vexatious conduct and the need to prevent further litigation abuse. The final orders included the general litigation restraint order and a direction that the plaintiff pay the defendant's costs of the application.

Orders