Victorian Supreme Court grants indefinite litigation restraint order against vexatious litigant Julian Knight

Attorney-General for the State of Victoria v Knight [2016] VSC 488 (30 August 2016)

Summary
An order restraining Julian Knight from commencing legal proceedings without leave of the Court has been extended indefinitely under the Vexatious Proceedings Act 2014 (Vic) (“Act”). Justice J Forrest described Mr Knight as a “persistent and undeterred litigant who will continue to litigate any cause regardless of its merits” (at paragraph [37]).

The Act expands on the former regime and aims to reform and consolidate the law relating to vexatious proceedings in a way that “balances individual rights of access to the courts with the public interest in an efficient and effective justice system”.

Under the Act, various types of “litigation restraint orders” (“LRO”) can be made by Victorian courts and tribunals. The most serious is a “general litigation restraint order” (“GLRO”). A GLRO can only be made by the Supreme Court, which must be satisfied that the person has “persistently and without reasonable grounds commenced or conducted vexatious proceedings”.

Facts
Julian Knight is currently serving a life sentence for mass murder. Since incarcerated, he has instituted numerous legal proceedings, many of which have been described as “baseless”, “foredoomed to fail” or “an abuse of process.”

On 19 October 2004, Mr Knight was declared to be a “vexatious litigant” pursuant to section 21(2) of the Supreme Court Act 1968 (Vic) (“SCA”), and Justice Smith made an order preventing him from commencing – without leave of the Court – any legal proceedings, for a period of ten years.

On 16 October 2014, Justice T Forrest extended that order pending final determination of this application.

The Act commenced on 31 October 2014, following an inquiry by the Victorian Parliamentary Law Reform Committee (“Committee”) into vexatious litigants. The Act repealed section 21 of the SCA, and had the effect of converting the existing order into a GLRO under the new regime.

The question for Justice J Forrest in this application, was whether to extend the order indefinitely.

Relevant provisions
Section 29 of the Act allows the Supreme Court to make a GLRO if satisfied that the person has “persistently and without reasonable grounds commenced or conducted vexatious proceedings.” “Vexatious proceeding” is defined to include a proceeding that is an abuse of process, commenced without reasonable grounds, or commenced (or conducted in a way so as) to harass or annoy, to cause delay or detriment, or for (or to achieve) any other wrongful purpose.

The Court may take into account any matter it considers relevant, including but not limited to:

• any proceeding commenced or conducted by the person in any Australian court or tribunal;
• any existing orders against the person;
• any other matter relating to the way in which the person conducts or has conducted litigation.

Importantly, section 33 allows the Court to specify that a GLRO remain in force indefinitely, and to extend an order if it is “in the interests of justice to do so”.

Further, section 30 allows an order to be crafted such that future leave applications need not always be made to the Supreme Court. Rather, they can be made to the court or tribunal in which the proposed proceeding will be heard.

Decision
Against this legislative background, Justice J Forrest considered three questions:

(1)                whether it was in the interests of justice to extend the duration of the GLRO;

(2)                if an order was to be made, then for what duration should it apply; and

(3)                what should the form of the order be.

Evidence
The Attorney General tendered affidavits detailing over 40 applications made by Mr Knight to issue proceedings since 2004, mostly relating to the conditions of his incarceration. Of these, leave was refused in 30. In the six in which leave was granted, he was successful in just three.

Mr Knight called Professor Paul Mullen, a forensic psychiatrist and an expert on “querulous complainants” – people who relentlessly pursue litigation without proper bases due to a psychiatric disorder or personality trait. Professor Mullen said that Mr Knight was not a “querulous litigant” and his behaviour could not be explained by any mental abnormality. However, he found that Mr Knight has “obsessional traits” and his personality is such that he will continue to complain about his conditions of incarceration for as long as he is incarcerated.

The interests of justice
Justice J Forrest found a continuation of the conduct which had led to the initial order being made. His Honour said (at paragraph [37]), “it is not to the point, as Professor Mullen explained, that Mr Knight is not a querulous litigant. The fact is that he is a persistent and undeterred litigant who will continue to litigate any cause regardless of its merits.”

Mr Knight emphasised his success in some applications. However, the “proportion” of success will not bear on the “threshold question” of whether somebody is a vexatious litigation (although it might bear on the exercise of the Court’s discretion to make an order). His Honour said (at paragraph [46]):

the existence of a number of successful applications for leave or judgments does not paint the whole picture. Each application places a strain on the administration of the justice system. Whether under the SCA or the Act, Mr Knight’s applications, frequently baseless, take up scarce judicial resources and mean that other non-vexatious litigants are delayed in accessing justice.

His Honour noted that a number of Mr Knight’s successful applications had involved “relatively inconsequential grievances” unworthy of agitation, and was ultimately undeterred by his limited success.

Duration and form of order
Justice J Forrest found that Mr Knight’s behaviour was likely to persist indefinitely, and crafted the order accordingly. To reflect the goals of effectiveness and proportionality, his Honour ordered that any future applications be made to the court or tribunal in which Mr Knight seeks to litigate.

Commentary
Restraining a person’s ability to seek redress in the courts is an extreme measure. However, as the Committee noted, public funding for courts and tribunals is limited, and vexatious litigants consume a disproportionate amount of their resources. In doing so, they “affect access to justice for the community as a whole.” This “unnecessary strain on the administration of justice” was an “overwhelming” factor in Justice J Forrest’s decision to extend the order (see paragraph [54]). The new regime seeks to balance these competing goals.

The benefit of the new Act is a tiered system of LROs which increase in severity. Only the most extreme cases will warrant a GLRO. For this reason, they rightly remain the exclusive domain of the state’s highest court.

Finally, as Justice J Forrest noted (at paragraph [57]), “such an order does not prevent Mr Knight from seeking leave to commence a proceeding”. Rather it creates an additional guard against any further unmeritorious claims.

The full text of the decision can be found here.

Sarah Werner is a Law Graduate at King & Wood Mallesons.