Knight v Shuard

[2015] VSC 388

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2013 02363

JULIAN KNIGHT	Plaintiff
v
JAN SHUARD (In her capacity as Commissioner for Corrections Victoria)	Defendant

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JUDGE:	McDONALD J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 July 2015
DATE OF JUDGMENT:	6 August 2015
CASE MAY BE CITED AS:	Knight v Shuard
MEDIUM NEUTRAL CITATION:	[2015] VSC 388

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Practice and Procedure — Vexatious litigant — Application for leave to commence legal proceedings — Application subject to provisions of the Vexatious Proceedings Act 2014 (Vic) —Application did not comply with mandatory provisions of Vexatious Proceedings Act 2014 (Vic) — Application for leave to amend originating motion filed prior to commencement of Vexatious Proceedings Act 2014 (Vic) — Amended proceeding would challenge new decision and substitute new defendant — Application for leave to amend refused.

Supreme Court Act 1986 (Vic) s 21; Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 83.04; Vexatious Proceedings Act 2014 (Vic) s 21, 56, 62, 62(2), 63(2)(a).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Ms C M Harris	Victorian Government Solicitor

HIS HONOUR:

1. By an originating motion dated 16 July 2013, Mr Knight seeks relief in the nature of certiorari quashing the February 2013 decision of Jan Shuard, Commissioner of Corrections Victoria, refusing to increase rates of remuneration paid to prisoners.  Mr Knight also seeks an order in the nature of mandamus requiring Ms Shuard to reconsider her decision. 

1. Mr Knight was declared a vexatious litigant by an order of the Supreme Court of Victoria made on 19 October 2004.  Prior to the commencement of the Vexatious Proceedings Act 2014 (Vic) (“the Act”), Mr Knight was required by s 21 of the Supreme Court Act 1986 (Vic) to obtain the leave of the court to commence the current proceeding.

1. The judgment of Zammit J in Knight v Thomas[1] is authority for the proposition that an application for leave to commence a proceeding pursuant to s 21 of the Supreme Court Act1986 (Vic) which had not been heard and determined as at the date of repeal of that section(31 October 2014),[2] is to be heard and determined in accordance with the Act .

   [1][2015] VSC 283 (‘Knight v Thomas’).

   [2]Vexatious Proceedings Act2014 (Vic) s 2(2) and 102.

1. I am bound to follow the judgment of Zammit J unless I consider that it is plainly wrong.[3] 

   [3]Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1, 13.

1. In the proceedings before me on 29 July 2015, Mr Knight appeared for himself and Ms Harris of counsel appeared for the defendant.  Neither Mr Knight nor Ms Harris advanced the submission that Zammit J’s judgment in Knight v Thomas was attended by error.  To the contrary, both submitted that I should follow the judgment.[4]  Independently of these submissions, I do not consider there is any basis upon which I could conclude that the judgment was plainly wrong. 

   [4]Transcript of Proceedings, Knight v Shuard (Supreme Court of Victoria, S CI 2013 02363, McDonald J, 29 July 2015) T2 L22 and T7 LL4-5.

1. It follows that Mr Knight’s application for leave to proceed must be dealt with in accordance with the provisions of the Act. By operation of s 91 of the Act, Mr Knight is taken to be subject to a general litigation restraint order made under s 29 of the Act. A person who is subject to a general litigation restraint order may apply for leave to commence or continue proceedings under s 54 of the Act. Such applications must:

(i)in the case of an application to continue a proceeding, be in Form 83D;[5] and

(ii)be accompanied by a disclosure (usually by affidavit) of the matters prescribed by s 56 of the Act.

[5]Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 83.04(a).

1. If the court considers that an application should proceed, the court must direct the applicant to give notice of the application to the Attorney-General and certain other relevant persons.[6]  If a person who has been given notice wishes to be heard in relation to the application, the court may direct that the person make written submissions or oral submissions.[7]  Applications for leave to proceed are to be determined on the papers unless the court considers that there are exceptional circumstances and it is appropriate to do so, having regard to the interests of justice.[8]

   [6]Vexatious Proceedings Act2014 (Vic) s 60(2).

   [7]Ibid s 62(2).

   [8]Ibid s 63(2).

1. Since Mr Knight filed his application in July 2013, there have been two events which render the relief sought by him to be of no utility.  First, in December 2013 a review of prison rates of remuneration was undertaken by the Secretary of the Department of Justice, resulting in a 5% increase.  A further review was conducted in December 2014 but did not result in any increase.  In written submissions dated 29 May 2015, Mr Knight foreshadowed that in light of these developments he would seek to amend his originating motion to challenge the December 2013 decision of the Secretary of the Department of Justice.[9] Self-evidently, the December 2013 decision is a different decision by a different decision-maker than the subject of the July 2013 originating motion. Putting to one side the application of the Act, any amendment to the originating motion would require the substitution of a new defendant in lieu of Ms Shuard.

   [9]Paragraph 4 of the plaintiff’s outline of submissions dated 29 May 2015.

1. I pointed out to Mr Knight that his application in its current form does not comply with the mandatory prerequisites imposed by the Act.[10]  In response, Mr Knight sought leave to amend the originating motion dated 16 July 2013.[11]  Having heard from both Mr Knight and Ms Harris on 29 July 2013, I made a ruling refusing Mr Knight leave to amend his originating motion.[12]  I advised both Mr Knight and Ms Harris that I would publish my reasons for this ruling.[13] My reasons are as follows. 

   [10]Transcript of Proceedings, Knight v Shuard (Supreme Court of Victoria, S CI 2013 02363, McDonald J, 29 July 2015) T5 LL8-10. 

   [11]Ibid T6 LL25-27.

   [12]Ibid T12 LL4-23.

   [13]Ibid T11 L2.

1. It is doubtful whether the originating motion dated 16 July 2013 is capable of amendment. Mr Knight’s application for leave to proceed is now subject to the Act. An application for leave to proceed under the Act is not by way of originating motion but must be in accordance with Form 83D of the Rules and supported by an affidavit of disclosure complying with s 56 of the Act.

1. Assuming in Mr Knight’s favour that the court could grant leave to amend the originating motion of 16 July 2013, I would decline to do so on discretionary grounds.  Both the decision and the decision-maker, which are the subject of challenge via the July 2013 originating motion, have been overtaken by events.  This is conceded by Mr Knight.[14]  The proceeding which Mr Knight has foreshadowed he wishes to bring, which challenges the quantum of the December 2013 increase of 5% in remuneration rates of pay, is of a fundamentally different character than the decision which is subject to challenge in his July 2013 originating motion.  Further, the December 2013 decision increasing prisoner remuneration by 5% was made by a different decision-maker which necessitates the substitution of a new defendant.  I accept Ms Harris’ submission[15] that the differences between the extant proceeding and the foreshadowed proceeding are so fundamental as to weigh heavily against Mr Knight being granted leave to amend. 

   [14]Ibid T3 LL1-9.

   [15]Ibid T8 LL8-15.

1. The consequence of the refusal of Mr Knight’s application for leave to amend is that the extant application must be dismissed by reason of non-compliance with the mandatory provisions of the Act set out above. The court will order that Mr Knight’s application by originating motion dated 16 July 2013 be dismissed.

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