Knight v Shuard - [2015] VSC 36

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2014 00831

JULIAN KNIGHT	Plaintiff
v
JAN SHUARD	First Defendant
IAN THOMAS	Second Defendant

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JUDGE:	GINNANE J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 February 2015
DATE OF JUDGMENT:	20 February 2015
CASE MAY BE CITED AS:	Knight v Shuard
MEDIUM NEUTRAL CITATION:	[2015] VSC 36

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PRACTICE AND PROCEDURE – Vexatious litigant – General litigation restraint order – Whether leave to commence proceeding should be granted – Test to be applied – Transitional provisions – Supreme Court Act 1986 s 21 – Vexatious Proceedings Act 2014 ss 54, 55, 91.

ADMINISTRATIVE LAW – Prison – Separation of prisoners – Effect on prisoners’ privileges – Whether invalid application of policy – Previous proceeding seeking habeas corpus – Declaratory relief sought – Leave to commence proceeding refused – Corrections Act 1986 ss 8, 54A – Corrections Regulations 2009 regs 27, 42.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Self-represented	—
For the Defendants	Ms C Harris	Victorian Government Solicitor’s Office

HIS HONOUR:

Mr Julian Knight, who was declared a vexatious litigant by this Court and is now to be regarded as being subject to a general litigation restraint order, seeks leave to commence a proceeding by originating motion seeking declarations that:

(a)The power of the Secretary of the Department of Justice to separate prisoners, pursuant to regulation 27 of the Correction Regulations 2009 (Vic) does not include the power to impose solitary confinement or a punishment regime on a prisoner who has not committed a criminal or prison offence;
(b)The power of the Secretary of the Department of Justice, pursuant to s 54A of the Corrections Act 1986 (Vic), to withdraw privileges from a prisoner must be exercised on an individual basis, cannot be exercised in advance of a relevant event occurring & must not be exercised as a form of punishment.

The first defendant is the Commissioner, Corrections and the second defendant is the Governor of Port Phillip Prison.

Mr Knight is a prisoner at Port Phillip Prison. He was declared a vexatious litigant in 2004 and because of a change of legislation is now subject to a general litigation restraint order.

His proposed proceeding seeks to challenge what he describes as the prisoner separation policy and the circumstances under which prisoners’ privileges are removed. Mr Knight’s proposed proceeding arises from actions affecting him that were taken at the Prison in January 2014.

I have decided that Mr Knight should not have leave to commence the proceeding as it would be a vexatious proceeding and would have no reasonable grounds.

The context of the application

On 19 October 2004, Mr Knight was declared a vexatious litigant under s 21(2) of the Supreme Court Act 1986. An order of Smith J restrained Mr Knight from commencing any legal proceedings in this Court, an inferior court or any tribunal for a period of 10 years. On 16 October 2014, this order was amended by an…

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 36
Case: [2015] VSC 36
Decision Date: 20 February 2015

CaseChat Overview and Summary

The applicant, Knight, sought leave to bring proceedings against the respondent, Shuard, in respect of the application of certain policies regarding the separation of prisoners. The proceedings were brought in the Supreme Court of Victoria, with the court considering whether to grant leave under the Vexatious Proceedings Act 2014. The court also had to determine whether the application of the policies in question was invalid and whether the applicant was entitled to relief by way of a declaration or habeas corpus. The respondent argued that the application should be dismissed, and that the applicant was a vexatious litigant who should be subject to a general litigation restraint order.

The primary legal issue before the court was whether the applicant should be granted leave to bring the proceedings. In determining this, the court had to consider whether the applicant was a vexatious litigant under the Vexatious Proceedings Act 2014, and whether the application of the policy in question was invalid. The court also had to consider whether the applicant was entitled to relief by way of a declaration or habeas corpus. The court had to balance the applicant's right to access the court with the need to prevent the abuse of legal processes.

The court found that the applicant was a vexatious litigant and refused to grant leave to bring the proceedings. The court found that the application of the policy in question was valid, and that the applicant was not entitled to relief by way of a declaration or habeas corpus. The court found that the applicant had brought numerous proceedings in the past that were without merit, and that the current application was an abuse of legal processes. The court found that the applicant's conduct was vexatious and oppressive, and that the granting of leave would be an abuse of the court's process.

The court refused the applicant leave to bring the proceedings and made a general litigation restraint order against the applicant. The court found that the applicant was a vexatious litigant and that the granting of leave would be an abuse of the court's process. The court also found that the application of the policy in question was valid, and that the applicant was not entitled to relief by way of a declaration or habeas corpus.

Orders