Litigation prophylaxis

William Collins on Victoria's vexatious litigants ... Goldie Collins and Constance Bienvenu look like being outshone by Hoddle Street killer Julian Knight, a resident of Port Phillip Prison ... Persistent resort to civil justice ... Tireless struggle against the state 

In any given span in the history of the courts and administrative tribunals there will be at least one person whose fondness for initiating process is perceived by the powers-that-be to be so entrenched as to call for prophylactic measures of protection. 

In his book, Maverick Litigants: A History of Vexatious Litigants in Australia 1930-2008 (Maverick Publications, 2009), Simon Smith provides a thoroughly researched and lively account of the courthouse crusades of some of the most famous vexatious litigants of the twentieth century.

In Victoria, among the most prominent litigators are Goldsmith (Goldie) Collins (1901-1982) and Constance May Bienvenu (1912-1995).

As laid out in full by Dr Smith in his absorbing tome, the epic determination with which Collins and Bienvenu fought their respective ever-widening controversies over decades has to be both marvelled at and pitied.

If asked to vote in the award of a prize for tenacity, plus litigious non-achievement, I would prefer the indefatigable Mr Collins to the indomitable Mrs Bienvenu, but it would be a close run contest in a two horse race.

Vic Supreme Court library: Goldie failed to get accessThe determination of Goldie Collins to exercise what he considered to be his right of access to - and to scale the heights of - the justice system in Victoria is nowhere better exemplified than in his brave, but unsuccessful, attempt to avail himself of the beautiful Victorian room that is the home of the library of the Supreme Court of Victoria: Collins v The Supreme Court Library Committee [I953] VLR 161.

Nowadays, Mr Julian Knight (b.1968) is probably the Port Phillip District's most energetic would-be litigant.

Unlike the vexatious litigants dealt with in Dr Smith's book, Knight has had to pursue his claims with the added disadvantage of being a long-term inmate (since 1987) of Victoria's prison system (currently at Port Phillip Prison).

In 1987, Knight was sentenced to life imprisonment (with a minimum non-parole period of 27 years) for murdering seven people and other crimes of extreme violence - in the episode that lives on in infamy as the Hoddle Street murders: R v Knight [1989] VR 705.

Knight's persistent resort to the civil justice system is a tale of one man's very determined struggle against the might and power of the state.

If Justinian readers peruse the Austlii alphabetical list of Supreme Court of Victoria trial division cases under "K", they will obtain a snapshot of Mr Knight's resort to litigation in that forum to secure his rights in the years 2002-2004.

However, the authorities disapproved of Knight's litigious enthusiasms and they clearly had a point. It is no easy matter for the attorney general to convince the Supreme Court to shut a litigant off from issuing process.

Ordinarily, it will only be after a litigant has chalked-up a longish list of court filings that the first law officer will be spurred into moving the court to declare the serial filer vexatious.  

Knight: vexatious litigant who kept litigatingSo it came to pass that in October 2004 Justice Tim Smith made an order under s.21(3) of the Supreme Court Act 1986 that Knight was not, for ten years, to commence any legal proceeding without the leave of the court.

Knight has unsuccessfully sought to have Smith J's 2004 order revoked. Two years ago, Justice David Byrne was not persuaded.

Knight, who has completed a university degree in prison, provided what might be called a "user's perspective" in a submission to the inquiry into vexatious litigants by the Victorian parliament's law reform committee, which reported in 2008.

More than once Knight has exercised his right to seek the court's leave to commence proceedings. Section 21(4) of the Supreme Court Act provides that leave is not to be given for a vexatious litigant to commence a proceeding unless the court is satisfied that it will not be an abuse of the court's process.

It is a measure of his grievances and his litigious acuity that Knight has had more than mere passing success.

The emergence in the past three decades of the administrative law of judicial review and merits review, and the passage of the Freedom of Information Act 1982, are two institutional developments that were lacking in the days when Goldie Collins and Mrs Bienvenu were frequenting the corridors and courtrooms of the William Street pile.

There can be no doubt that Julian Knight is well aware that the Corrections Act 1988 confers on him important enforceable legal rights.

In 2009, Justice David Harper granted Knight leave to apply to the Victorian Civil and Administrative Tribunal for review of a decision of the Department of Justice refusing an access request, which he made under the Victorian Freedom of Information Act 1982.

In 2009, Justice Ross Robson gave Knight limited leave to issue proceedings to ventilate a grievance concerning access to computer facilities.

Maxwell: acid observation about Corrections CommissionerThe Commissioner of Corrections unsuccessfully sought to have the Court of Appeal overturn that decision.

In refusing leave to appeal, the president, Justice Chris Maxwell, added this acid observation about the commissioner's application:

"Finally, since I have concerns about the pressures on this court and the trial court, I cannot refrain from making the following comment.

It seems surprising that what on the face of it would appear to be a relatively minor issue of access to computer facilities should have required a full dress application for leave to appeal such as this. I would have thought there were more significant matters of prison administration to which such litigation effort and public resources would be directed.

Of course, every person has a right to challenge decisions. But if, in the end, this is about ensuring that a prisoner, like any other citizen, can properly exercise the rights which as a vexatious litigant the Supreme Court Act 1986 confers on him, then it may be that now is the time for some reconsideration." (Emphasis added.) 

Knight, who has acted for himself in his leave applications, was represented in the Court of Appeal by senior and junior counsel instructed by Victoria Legal Aid.

In August 2010, Justice Kevin Bell granted Knight leave to apply to the VCAT for review of another FOIA access refusal. That case has gone to the Court of Appeal.

This year, Justice Elizabeth Hollingworth and Justice Karin Emerton have acceded to leave applications made by Knight.

Challenge to prison smoking policyMost recently, Knight sought leave to seek declarations that the Secretary to the Department of Justice had no power to impose what was described as a levy on the sale of tobacco products in Victorian prisons and that a prison governor was powerless to implement such a decision.

The cigarette price levy was intended to bring the cost of cigarettes and other tobacco products in Victorian prisons in line with the price of fags in the community generally and to raise funds for the development and delivery of anti-smoking and quit-smoking programs.

The policy was implemented in the context of the development of the smoke-free environment policy, which imposed increasingly stringent restrictions upon the areas within prisons where prisoners and prison staff could smoke.

In an affidavit relied on by Knight in support of his leave application, he deposed that he has been a regular smoker since the age of 16 and estimated that he spends approximately $80 to $90 each week on cigarettes and tobacco.

Knight's case is that imposition of the levy is not authorised by the general power conferred upon the secretary or governor of a prison by s.21 of the Corrections Act in the discharge of their responsibilities for the "management, security and good order of the prison and the safe custody and welfare of the prisoners".

Further, he says the power to impose a levy or other financial burden is one that must be expressly conferred by statute.

On November 29, 2011, Associate Justice Daly allowed Knight's application for leave to bring the proposed proceeding.

Quite apart from its merits, the questions of delay, standing, and the identification of the relevant decisions and the proper parties to the proceeding present difficulties for Knight in successfully prosecuting his case.

However, those difficulties and hurdles did not mean that a proceeding was foredoomed to fail, in the sense that it was hopeless. 

William Collins reporting