Knight v Wise

[2015] VSC 157

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. S CI 2013 2364

JULIAN KNIGHT	Proposed Plaintiff
v
RODERICK WISE	Proposed Defendant

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 April 2015
DATE OF JUDGMENT:	23 April 2015
CASE MAY BE CITED AS:	Knight v Wise
MEDIUM NEUTRAL CITATION:	[2015] VSC 157

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PRACTICE AND PROCEDURE – Vexatious litigant – Application for leave to bring proceeding to challenge refusal of request for access to in-cell computer – Request and refusal overtaken by events – Futility – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Proposed Plaintiff	The applicant in person, by video-link
For the Proposed Defendant	Ms C M Harris	Victorian Government Solicitor’s Office

HIS HONOUR:

1. This is an application by a declared vexatious litigant, Mr Julian Knight, for leave to commence a proceeding.  Mr Knight is serving a sentence of imprisonment for life.  He is and at all relevant times has been housed in Port Phillip Prison.  The application for leave was initiated by originating motion and summons.  Both were filed, together with an affidavit in support, on 7 May 2013.  The application was for leave to bring a proceeding by way of an application for orders in the nature of certiorari and mandamus in relation to a decision of the proposed defendant, Mr Roderick Wise, as Deputy Commissioner, Operations, of Corrections Victoria.  The decision was conveyed by way of a letter from Mr Wise to Mr Knight dated 18 March 2013 determining to refuse a request made by Mr Knight by letter dated 10 February 2013 for access to an in-cell computer.

1. Previously, since 2006, Mr Knight had made many like requests for access to an in-cell computer.  All had been refused.  Mr Knight had brought numerous applications to this Court for leave to challenge the earlier refusals.  It is unnecessary to chart the history of those cases.[1]

   [1]See Knight v Hastings [2012] VSCA 315, [24]-[25].

1. After the refusal decision of 18 March 2013 which is the subject of the present application for leave, Mr Knight made two more requests to Corrections Victoria for access to an in-cell computer.  One was made on 8 May 2013 and the other on 30 July 2013.  Those two requests, each made subsequent to the commencement of the present application for leave, were dealt with by Mr Wise, acting in the same capacity as before, by a letter dated 15 August 2013.  Mr Wise addressed all three of the criteria set out in the policy of Corrections Victoria upon which Mr Knight had relied in his requests, including the education/training criterion (being a criterion upon which Mr Knight had also, and particularly, relied in his request of 10 February 2013).  Mr Wise refused the requests. 

1. Mr Knight obtained limited leave from T Forrest J to challenge Mr Wise’s decision of 15 August 2013.[2]  The proceeding was subsequently heard and determined by Justice Emerton.  Her Honour dismissed it on 15 December 2014.[3] 

   [2]Knight v Wise [2014] VSC 76.

   [3]Knight v Wise [2014] VSC 639.

1. In these circumstances, to grant Mr Knight leave now to challenge the earlier refusal decision of 18 March 2013 by Mr Wise would be utterly futile.  That earlier decision has been well and truly overtaken by events.  In these circumstances, it is inconceivable that on a substantive hearing, the Court would even entertain Mr Knight’s proposed challenge to the decision of 18 March 2013.[4] 

   [4]As discussed in court today, it may also be in conflict with Anshun estoppel principles:  see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Shaw v Gadens Lawyers; Shaw v Rigby Cooke Lawyers [2014] VSCA 74.

1. I need not consider whether or to what extent the changes introduced by the Vexatious Proceedings Act 2014 apply to the present application for leave.[5]

   [5]Compare Knight v Money [2015] VSC 105, [10]-[17].

1. I am not satisfied that the proposed proceeding would not be an abuse of process.  In fact I am convinced that it would be an abuse of process.  

1. Accordingly, this application must be and is dismissed.