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Thursday, August 12, 2010

VCAT review of vexatious litigant's FOI request not an abuse of process

Julian Knight, who murdered seven people and injured 19 in Melbourne in the Hoddle St massacre of 1987 has been granted permission to seek review of a Freedom of Information decision by Corrections Victoria (part of the Department of Justice) to refuse him access to his prison file, sought to help him prepare to seek parole when he becomes eligible in 2014. Knight (with 20 odd years of extensive experience in FOI and court processes) was declared a vexatious litigant in 2004, and cannot commence litigation without court approval. He sought leave to challenge the refusal of access decision in the Victorian Civil and Administrative Tribunal.  Section 21(4) of the Supreme Court Act states that leave to commence proceedings ‘must not be given’ unless the court is satisfied the proposed proceeding ‘will not be an abuse of process.'

Supreme Court Justice Bell said [5] the relevant issue that needed to be addressed was "not whether the applicant has ‘reasonable prospects of success’ (in the VCAT proceedings) but whether the application is ‘foredoomed to fail’,.. a less strict test."

Access to the documents had been refused on the basis of s 25A(5) of the Victorian FOI act. The section confers power to categorically refuse access where three conditions are satisfied: First "the exempt nature of the documents is objectively apparent from the face of the request. Second, it must be so apparent that all of the documents in the request are exempt. Third, from the face of the request or the applicant’s declared wishes, there must equally be no scope for the operation of the obligation in s 25 to provide edited copies of any of the documents. Cases falling into this category may be categorically refused, at the agency’s discretion."[37] 

Justice Bell, after examining the application for documents and the underlying exemption claims, noted[124] the power would "not be available if any of the documents are not exempt in nature as described in the request or it is reasonably practicable to give a willing applicant access to copies of any of them in edited form."He concluded:

125 Julian Knight is serving a life sentence in prison for crimes of extreme violence, including the murder of seven people. He is eligible for consideration of parole in 2014. To assist in preparing an application for parole, he made a request of Corrections Victoria for access to various documents kept on the prison intelligence information system. He said he did not want access to confidential information or information about other people. He said he would accept edited copies of documents with exempt matter deleted. The Department of Justice (representing Corrections Victoria) categorically refused to grant access to the documents on the basis that they were exempt in nature and access could not be given to edited copies. 

126 Mr Knight wishes to apply to the Victorian Civil and Administrative Tribunal for review of the department’s decision. As he is a declared vexatious litigant, he cannot do so without leave of the court. He has applied for that leave, which he can be granted if the proposed application would not be an abuse of process. Under the Supreme Court Act, the proposed application will not be an abuse of process if it would not be foredoomed to fail.

127 After considering Mr Knight’s request and the exemptions relied on by the department, I have concluded that his proposed application would not be foredoomed to fail.

128 Although it will ultimately be a matter for the tribunal to decide, I think the nature of the documents described in Mr Knight’s request can fairly be characterised as documents concerning him personally and his imprisonment. Such documents are not of their nature all exempt. It may be reasonably practicable to grant access to edited copies of at least some documents of such a nature. What documents are exempt will depend on the application of the relevant exemptions, which must be considered on a document by document (or class by class) basis. Whether it is reasonably practicable to give access to copies of the documents with exempt matter deleted will depend on the form and content of the document, and the applicable exemptions, which will also have to be considered on a document by document (or class by class) basis.

129 I have no doubt that many of the documents sought by Mr Knight will, on consideration, be found to be exempt. The internal working document, law enforcement, personal privacy, confidential information and secrecy enactment exemptions (among others) have application to prison documents of the nature sought. But it is too much to say that all of the documents described in the request are exempt in nature and that it is not reasonably practicable to give Mr Knight access to edited copies of any of them. It is open to Mr Knight to argue before the tribunal that his application should not be categorically refused, but properly considered in the usual way.

130 For these reasons, I have decided to grant Mr Knight leave to apply to the tribunal for review of the decision of the department categorically to refuse his application to access the documents sought.
If Justice Bell's associate gets to read this, he/she might correct the links in the decision to the Freedom of Information Act and specific sections that at the moment are to the Commonwealth and Queensland acts, not the Victorian act, the legislation relevant to Knight's request. 


  1. Anonymous2:52 pm

    As a former associate, I just wanted to let you know that we don't create the links in the judgments - I believe that Austlii itself undertakes that task.

  2. Thanks and sorry for traducing the good name of the Associate. Hope someone noticed the errors in the three and a half years since.