Knight v Westin
[2023] VSC 699
•28 November 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S ECI 2020 02113
| JULIAN KNIGHT | Proposed Plaintiff |
| v | |
| MELISSA WESTIN (in her capacity as Deputy Commissioner, Custodial Operations) | Proposed Defendant |
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JUDGE: | Watson J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers pursuant to s 63 of the Vexatious Proceedings Act 2014 (Vic) |
DATE OF JUDGMENT: | 28 November 2023 |
CASE MAY BE CITED AS: | Knight v Westin |
MEDIUM NEUTRAL CITATION: | [2023] VSC 699 |
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PRACTICE AND PROCEDURE – General litigation restraint order – Vexatious litigant – Application for leave to commence proceeding seeking declaratory relief – Refusal of application to purchase a personal in-cell computer – Whether proposed proceeding shown to be not vexatious or to have reasonable grounds – Application for leave refused – Vexatious Proceedings Act 2014 (Vic) ss 30, 54, 55.
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APPEARANCES: | Counsel | Solicitors |
| For the Proposed Plaintiff | No appearance | |
| For the Proposed Defendant | No appearance |
HIS HONOUR:
Mr Knight has applied under s 54 of the Vexatious Proceedings Act 2014 (Vic) (‘the Act’) for leave (the application for leave) to commence a proceeding (the proposed proceeding) in the Supreme Court against Melissa Westin in her capacity as the Deputy Commissioner of Custodial Operations (the Deputy Commissioner).
Mr Knight is currently serving a life sentence at Port Phillip Prison. In 2004, Mr Knight was declared a vexatious litigant pursuant to s 21 of the Supreme Court Act 1986 (Vic).[1] Since 2016, Mr Knight has been subject to an indefinite general litigation restraint order made under the Act.[2] Mr Knight is precluded from commencing a proceeding in any Victorian court or tribunal without leave.[3]
[1]Attorney-General v Knight [2004] VSC 407.
[2] Attorney-General for the State of Victoria v Knight [2016] VSC 488.
[3] Vexatious Proceedings Act 2014 (Vic) s 30.
Section 55 of the Act provides that:
On an application under section 54, a Victorian court or tribunal may grant a person who is subject to a general litigation restraint order leave to commence or continue a proceeding if the Victorian court or tribunal is satisfied that—
(a) the proceeding is not a vexatious proceeding; and
(b) there are reasonable grounds for the proceeding.
In the proposed proceeding Mr Knight seeks a declaration with respect to a decision made by the Deputy Commissioner on 22 January 2020 (the 22 January 2020 decision) to reject his application dated 31 December 2019 for access to an ‘in-cell’ computer.
In his application for leave Mr Knight describes the relief he seeks in the proposed proceeding in the following terms:
1.A declaration that the decision of the defendant on 22 January 2020 to refuse the applicant’s application submitted on 31 December 2019 to purchase a personal ‘in-cell’ computer, took into account an irrelevant consideration, namely that the applicant’s court cases were civil in nature.
After the 22 January 2020 decision, Mr Knight made another application for a ‘in-cell’ computer on 28 October 2022.[4] The then Deputy Commissioner, Custodial Operations rejected that application on 25 July 2023 (the 25 July 2023 decision) “based on previous breaches of the prisoner’s computer agreement, which impact security and good order of the prison”.[5] The 25 July 2023 decision was considered by the Federal Court of Australia in Knight v G4S Custodial Services,[6] where Mr Knight sought interlocutory orders granting daily access to computer facilities on the basis that the denial of that access constituted an impermissible interference with his “common law right of unimpeded access to the court”. Anderson J concluded:[7]
“The respondents’ refusal to provide the applicant with additional access or an ‘in cell’ computer does not constitute a breach of his common law right of access to the court”.
[4]Knight v G4S Custodial Services Pty Ltd [2023] FCA 926, [30].
[5] Ibid [32].
[6] Ibid [35].
[7]Ibid [72].
In Knight v Sellman & Ors,[8] Cavanough J dealt with three applications by Mr Knight for leave to proceed which had been overtaken by events. His Honour’s conclusion in respect of those applications was as follows:
30 As to each of the applications filed in 2013, the proposed proceeding would amount to an application for judicial review of administrative action taken by the Corrections authorities. The relief to be sought would be an order in the nature of certiorari or mandamus or a declaration. The grant of relief by way of judicial review of administrative action is usually discretionary, even where the applicant is not a vexatious litigant. Usually, the Court can and will refuse certiorari or mandamus or a declaration where such relief would be futile.
31 As indicated above, Mr Knight’s three pending leave applications filed in 2013 have all been overtaken by subsequent events and it would be futile and quite wrong to allow any of them to proceed any further.
[8] [2020] VSC 320.
In correspondence with the Prothonotary dated 9 January 2023, 8 May 2023 and 29 May 2023, Mr Knight asserts that the subject matter of the proposed proceeding is extant because the relevant Corrections Victoria policy, Commissioner’s Requirements – Prisoner Computers is substantively unchanged from when he made the application for leave. The proposed proceeding, however, only challenges one aspect of that policy which is that access to ‘in-cell’ computers for outstanding civil matters will only be approved in exceptional circumstances and that challenge is only made in relation to the 22 January 2020 decision.
The existence of the 25 July 2023 decision in my view creates an insuperable hurdle for Mr Knight’s application for leave. Events have overtaken the 22 January 2020 decision. It is no longer operative in any sense. Mr Knight has been refused access to an ‘in-cell’ computer because of the 25 July 2023 decision which was made on a basis which differs from the basis of the 22 January 2020 decision.
In these circumstances, the declaration Mr Knight seeks would be futile, I am not satisfied there are reasonable grounds for the proceeding and the application for leave should be refused.
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