Knight v Shuard - [2014] VSC 475

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2013 03624

JULIAN KNIGHT

Applicant

JAN SHUARD (in her capacity as Commissioner of Corrections Victoria)

IAN THOMAS (in his capacity as General Manager of Port Phillip Prison)

Proposed First Respondent

Proposed Second Respondent

---

JUDGE:	RUSH J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May 2014
DATE OF JUDGMENT:	23 September 2014
CASE MAY BE CITED AS:	Knight v Shuard & Anor
MEDIUM NEUTRAL CITATION:	[2014] VSC 475

---

PRACTICE AND PROCEDURE – Vexatious litigant – Application for leave to commence proceeding – Whether Court can be satisfied that the proposed proceeding is not or will not be an abuse of process by reason of it being foredoomed to fail – Prisoner communication – Applicant seeks mandatory injunction to release letters addressed to media which had been intercepted – Whether the General Manager of Port Phillip Prison had authority to seize letters sent by the prisoner – Whether letters represent a threat to prison security and could be regarded by victims as distressing and traumatic - Consideration of the Manager’s subjective reasonable belief, and whether that belief was objectively reasonable – Whether policy of Corrections Victoria infringes statutory right to send uncensored letters – Whether policy infringes statutory right to freedom of expression and right to take part in public life – Whether policy infringes implied right to political communication pursuant to the Constitution - Application refused – Knight v Anderson (2007) 16 VR 532 – Knight v Selisky [2012] VSC 635 – Knight v Corrections Victoria [2009] VSC 607 - Unions NSW v New South Wales [2013] HCA 58 – Supreme Court Act 1986 (Vic) s 21(4) – Corrections Act 1986 (Vic) ss 47(1)(m), 47(1)(n), 47D and 47DA – Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 13(a), 15 and 18(1).

---

APPEARANCES:	Counsel	Solicitors
The Plaintiff appeared in person
For the Proposed First Respondent	Mr L. Brown	Victorian Government Solicitor’s Office
For the Proposed Second Respondent	Ms C. Harris	Marsh & Maher Lawyers

HIS HONOUR:

Introduction

Julian Knight (the ‘applicant’) is a prisoner at Port Phillip Prison and is currently serving a term of imprisonment for the murder of seven people and attempted murder of numerous others in Hoddle Street, Melbourne on 9 August 1987. He was sentenced to life imprisonment with a minimum term of 27 years. He becomes eligible for parole in 2014.

In 2004, the applicant was declared a vexatious litigant and therefore requires leave of the Court to commence any proceeding.[1] He seeks leave pursuant to s 21(4) of the Supreme Court Act1986 (Vic) (the ‘Supreme Court Act’) to commence proceedings against each of the proposed respondents, Ms Jan Shuard in her capacity as Commissioner of Corrections Victoria (the ‘Commissioner’) and Mr Ian Thomas in his capacity as General Manager of Port Phillip Prison (the ‘Manager’) (together, ‘the respondents’).[2]
[1]Supreme Court Act 1986 (Vic) s 21(3).
[2]By way of Originating Motion and…

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 [2014] VSC 475
Case: [2014] VSC 475
Decision Date: 23 September 2014

CaseChat Overview and Summary

In Knight v Shuard, the applicant, a prisoner, sought leave to bring an action against the respondent, the General Manager of Port Phillip Prison. The applicant sought a mandatory injunction to release letters addressed to the media which had been intercepted and seized by the prison authorities. The applicant argued that the seizure of the letters infringed his statutory right to send uncensored letters, his right to freedom of expression and to take part in public life, and his implied right to political communication under the Constitution. The applicant further argued that the policy of Corrections Victoria was inconsistent with these rights. The court was required to determine whether the application should be refused on the grounds that the proceeding was vexatious and an abuse of process, and whether the policy of Corrections Victoria infringed on the applicant’s rights.

The court considered whether it could be satisfied that the proceeding was not or would not be an abuse of process. The court examined the Manager’s subjective reasonable belief, and whether that belief was objectively reasonable, in deciding whether the letters represented a threat to prison security and could be regarded by victims as distressing and traumatic. The court also considered whether the policy of Corrections Victoria infringed on the applicant’s rights, and whether any infringement was reasonable and justifiable in a democratic society. The court found that the application should be refused as the proceeding was vexatious and an abuse of process. The court held that the Manager had the authority to seize the letters and that the policy of Corrections Victoria did not infringe on the applicant’s rights.

The court further found that the applicant’s previous attempts to challenge the policy had been unsuccessful and that the application was an abuse of process. The court held that the letters could be regarded by victims as distressing and traumatic, and that the Manager’s belief that the letters represented a threat to prison security was objectively reasonable. The court also held that the policy of Corrections Victoria was consistent with the applicant’s rights, and that any infringement was reasonable and justifiable in a democratic society. The application was refused and the applicant was ordered to pay the respondent’s costs.

Orders