Knight v Shuard  VSC 36
In the first decision under the Vexatious Proceedings Act, the Supreme Court has applied the new test for leave to proceed and denied Julian Knight the opportunity to seek relief against the Commissioner for Corrections.
In December last year, Andrew Downie posted an excellent article on CommBar Matters about the recently commenced Vexatious Proceedings Act 2014 (Vic). He said that, like many others, he looked forward to reading the first case published under the Act to see how it works in practice.
The first case under the Act has now been decided. In Knight v Shuard  VSC 36, Justice Ginnane considered an application by Julian Knight for leave to commence a proceeding seeking certain declarations about the powers of the Secretary of the Department of Justice to place prisoners in solitary confinement and to withdraw prisoners’ privileges.
Justice Ginnane noted that in October 2004, Mr Knight had been declared a vexatious litigant under section 21 of the Supreme Court Act 1986 (Vic). That provision was repealed on 31 October 2014 when the Vexatious Proceedings Act commenced. The new Act provides that vexatious litigant declarations made under the old regime are taken from 31 October 2014 to be general litigation restraint orders made under the new Act. The terms of the general litigation restraint orders are the same as the terms of the declarations made under the old regime.
As was the case with declarations made under the old regime, a person who is subject to a litigation restraint order under the new Act (whether limited, extended or general) must apply for leave to proceed in order to continue or commence a proceeding.
However, the test for leave is different. Under former section 21(4) of the Supreme Court Act, the Court was required to be satisfied that the proposed proceeding was not, or would not be, an abuse of process. This formulation of the test set a relatively low bar for vexatious litigants who were seeking leave to proceed. The new Act’s test requires the applicant for leave to establish both that the proposed proceeding is not a “vexatious proceeding” and that there are reasonable grounds for bringing the proceeding. “Vexatious proceeding” is defined to include the following:
- a proceeding that is an abuse of the process of a court or tribunal;
- a proceeding commenced to harass or annoy, to cause delay or detriment, or for another wrongful purpose;
- a proceeding commenced or pursued without reasonable grounds;
- a proceeding conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
As noted in the Department of Justice’s legislative guide to the new Act, “This [new test for leave] will require the applicant to establish that the proposed proceeding has a proper basis, for example with evidence as to the factual foundations of the proceeding.”
It is also worth noting that an application for leave to proceed under the new Act can be dismissed if the application is not materially different to a previous unsuccessful leave application made by the same person.
In Knight v Shuard, Justice Ginnane observed at  that Mr Knight was not required to satisfy the Court that his proposed proceeding would succeed. He was only required to satisfy the Court that the proceeding was not a vexatious proceeding and that there were reasonable grounds for it. After considering the evidence and the submissions, Justice Ginnane held that Mr Knight had not met the test for leave under section 55 of the new Act, and refused his application. His Honour went on to say for completeness that had he been applying the old test under section 21(4) of theSupreme Court Act, he would not have been satisfied that the proposed proceeding was not or would not be an abuse of the process of the Court.
Going forward, it will be interesting to see whether the higher threshold set by the new test for leave has the effect of precluding proceedings that might otherwise have been permitted under the old regime.