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:

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.

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.

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.

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.

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…

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 388
Case: [2015] VSC 388
Decision Date: 6 August 2015

CaseChat Overview and Summary

In the matter of Knight v Shuard, the Court was tasked with determining the validity of an application for leave to amend an originating motion, which was itself an application for leave to commence legal proceedings. The application was made by the plaintiff, Knight, under the provisions of the Vexatious Proceedings Act 2014 (Vic). The application was brought against Shuard, who was the defendant in the intended proceedings.

The central legal issue before the Court was whether the application for leave to amend complied with the mandatory provisions of the Vexatious Proceedings Act 2014 (Vic). Specifically, the Court had to determine whether the amendment would allow Knight to challenge a new decision and substitute a new defendant. The Court was also required to consider whether the application for leave to amend was made in accordance with the Supreme Court Act 1986 (Vic) and the Supreme Court (General Civil Procedure) Rules 2005 (Vic).

The Court found that the application for leave to amend did not comply with the mandatory provisions of the Vexatious Proceedings Act 2004 (Vic), as it proposed to challenge a new decision and substitute a new defendant. The Court held that such an amendment was not permissible under the Act. Additionally, the Court determined that the application for leave to amend was not in accordance with the Supreme Court Act 1986 (Vic) and the Supreme Court (General Civil Procedure) Rules 2005 (Vic). Consequently, the application for leave to amend was refused.

The Court's decision was grounded in the statutory requirements and procedural rules that govern applications for leave to amend under the Vexatious Proceedings Act 2014 (Vic). The Court emphasised the importance of adhering to the legislative framework and procedural guidelines to ensure that applications for leave to amend are valid and permissible. The Court's refusal to grant leave to amend highlights the strict compliance with the statutory provisions and procedural rules necessary for such applications.

Orders