Federal Court of Australia

Knight v Corrections Victoria (ex parte leave to institute proceeding) [2026] FCA 1484

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant is granted leave under r 2.27A of the Federal Court Rules 2011 (Cth) to file the following documents:

(a)    an originating application starting a representative hearing under Pt IVA of the Federal Court of Australia Act 1976 (Cth) dated 12 August 2026; and

(b)    an affidavit affirmed by the Applicant on 12 August 2026.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HILL J:

Introduction

1    The Applicant (Mr Knight) has applied for leave under r 2.27A of the Federal Court Rules 2011 (Cth) to file an originating application starting a representative hearing dated 12 August 2026 and an affidavit affirmed by him on 12 August 2026.

2    For the following reasons, leave is granted to file these documents. Mr Knight will require leave to represent other persons, and that leave is almost invariably refused. But that is a matter for the docket judge, rather than a reason to refuse leave to file documents under r 2.27A.

3    Materials: Mr Knight has filed an ex parte application for leave to institute proceedings dated 16 September 2026, and a supporting affidavit dated 17 September 2026. Those documents were accepted for filing on 1 October 2026. The application has been determined without an oral hearing, in accordance with r 2.27A(2).

background

4    Originating application: In August 2026, Mr Knight sought to file the originating application and affidavit. The originating application seeks to bring a representative claim on behalf of all prisoners in Port Phillip Prison contending that the charges imposed on prisoners for telephone calls constitute unconscionable conduct contrary to s 21 of the Australian Consumer Law; and that the charges imposed amount to price gouging. Mr Knight seeks the following final relief:

    A declaration that the 1,100 prisoners in Port Phillip prison are under a “special disability” when entering into consumer transactions for goods and services with or facilitated by G4S Correctional Services Pty Ltd and Corrections Victoria (Order 1);

    A declaration that the charges imposed by G4S, Corrections Victoria and Comsec TR Pty Ltd on 12-minute telephone calls made by prisoners at Port Phillip Prison and other prisons in Victoria constitute unconscionable conduct, given the “special disability” of the prisoners, the reliance of prisoners on the Prison Telephone System, and the charges imposed amount to price gouging (Order 4);

    Damages pursuant to s 236 and compensation pursuant to s 237 of the Australian Consumer Law with respect to the amounts paid by him in excess of standard cost of telephone calls (Order 5(iii)).

5    As discussed below, this form of relief corresponds to relief sought in pre-existing proceedings in this Court brought by Mr Knight on his behalf alone.

6    Direction made under r 2.27(f): On 27 August 2026, Hespe J reviewed these documents, and issued a direction under r 2.27(f) that these documents not be accepted for filing without leave of the Court.

7    Application for leave under r 2.27A: In an application dated 16 September 2026 (accepted for filing on 1 October 2026), the Applicant seeks leave under r 2.27A to institute these proceedings. His affidavit in support of that application contends that leave should be granted under r 2.27A for the following reasons:

(a)     The relevant cause of action concerns not only the Applicant but the other 400 prisoners at HM Prison Loddon (and by extension the remaining 6,400 odd prisoners in the other 13 prisons in Victoria),

(b)     The relevant cause of action concerns an ongoing claim not an historical one,

(c)    The proceeding takes up a cause of action that was originally prosecuted in the proceeding Knight v G4S Custodial Services Pty Ltd, State of Victoria & Comsec TR Pty Ltd (Case No VID 595 of 2021) but which was involuntarily discontinued because the respondent prison (Port Phillip Prison) was closed at the end of 2025 (NB. Grounds 2 and 3(i) in the instant proceeding mirror discontinued grounds 3 and 5(ii) in Knight v G4S Custodial Services Pty Ltd, State of Victoria & Comsec TR Pty Ltd). The cause of action, therefore, remains a “live question”,

(d)     The proceeding is started as a representative proceeding in order to correct a defect in the original filing of Knight v G4S Custodial Services Pty Ltd, State of Victoria & Comsec TR Pty Ltd (namely, that the proceeding was started with a Form 15: Originating application and leave was refused by the Honourable Justice Anderson to convert the proceeding into a representative action), &

(e)     The proceeding Knight v G4S Custodial Services Pty Ltd, State of Victoria & Comsec TR Pty Ltd is on foot. Discovery by consent against the respondents was granted by the Honourable Registrar Gronow on 25 May 2026, and standard discovery was ordered on 27 May 2026 (an appeal against that order is listed for hearing on 8 October 2026). Similar issues for determination, therefore, arise in the instant proceeding and a proceeding already accepted for filing and on foot.

8    Mr Knight is the Applicant in the current proceeding Knight v G4S Custodial Services Pty Ltd (VID 595 of 2021). (He also states that he has recently filed an unrelated proceeding in this Court.)

analysis

9    Rule 2.27A – general principles: The power in r 2.27A is similar in scope to a power in r 6.07.1 of the High Court Rules 2004 (Cth), which applies when a document appears on its face to be an abuse of process, to be vexatious or frivolous, or to fall outside the jurisdiction of the Court. That power has been exercised when (among other things) an application is confused or manifestly untenable, or when the applicant is seeking to reagitate matters that have previously been determined: see, respectively, Re Young [2020] HCA 13; (2020) 94 ALJR 448 at [13] (Gageler J); In the matter of an application by Philip Proietti for leave to issue or file [2024] HCASJ 13 at [9] (Beech-Jones J). Like the power in the High Court Rules, the power in r 2.27A to refuse leave to institute proceedings is exercised only in the clearest of cases: KTW25, in the matter of application by KTW25 for leave to file [2026] FCA 1114 at [2] (Colvin J); Re Young at [13].

10    Unrepresented applicants and representative proceedings: Here, the subject-matter of the proposed proceeding is the same as existing proceeding VID595/2021. The claims sought to be raised by Mr Knight, in themselves, could not be said to be manifestly untenable or plainly outside the Court’s jurisdiction; for example, it does not appear that the respondents in VID595/2021 have sought to argue that the proceeding should be summarily dismissed.

11    Instead, the difficulty with this proposed proceeding is Mr Knight’s attempt to bring a representative proceeding under Pt IVA of the Federal Court of Australia Act 1976 (Cth) as an unrepresented litigant. Part IVA of the Federal Court Act does not expressly prohibit an unrepresented litigant from bringing representative proceedings, but an unrepresented litigant requires leave to do so, and leave is almost invariably refused.

    A person is entitled to represent himself or herself (r 4.01(1) of the Rules), but a person who is not a lawyer does not have the right to act as an advocate for another person or persons without the leave of the Court: Wilkinson v Wilson Security Pty Ltd [2022] FCA 756 (Wilkinson (No 1)) at [21] (Colvin J); Paschke v Secretary, Department of Social Services [2023] FCAFC 143 at [18] (the Court).

    Representative proceedings under Part IVA of the Federal Court Act should ordinarily be conducted by a lawyer, because of the important duties a lead applicant owes to group members. The lead applicant has the conduct of proceedings on behalf of the class members and has fiduciary obligations to them. The Court relies on lawyers’ adherence to their duties as officers of the Court when acting for a representative applicant, because the Court is not able to supervise the lead applicant’s performance of their fiduciary obligations, or the competence or appropriateness of their actions: Paschke at [19]-[20]; Wilkinson v Wilson Security Pty Ltd (No 2) [2022] FCA 1161 at [8] (Colvin J).

    For that reason, courts generally do not permit a lay person to act on behalf of other persons, even when those other persons are willing to appoint them. The operation of the court system generally is dependent on lawyers performing the duties imposed on the legal profession, and those concerns are amplified considerably in representative proceedings under Pt IVA of the Federal Court Act: Wilkinson (No 2) at [8]-[10].

12    In Wilkinson (No 2), Colvin J refused leave for Mr Wilkinson to act on behalf of group members, even though his Honour accepted that Mr Wilkinson had acted with sincerity, commitment and energy throughout: see Wilkinson (No 2) at [12]. His Honour stated that the Court would refuse leave to permit a person who is not a qualified legal practitioner to represent group members “in almost all instances”: Wilkinson (No 1) at [22]; and, conversely, that the circumstances in which the Court would grant leave are “very limited”: Wilkinson (No 2) at [8]. Colvin J ordered that the proceeding no longer continue as a representative proceeding.

13    Mr Knight is therefore incorrect in suggesting that these proceedings merely correct a “defect” in the filing in VID595/2021: cf [7] above, point (d). The need for him to obtain leave from the Court to represent other group members is a necessary requirement, and this leave is very rarely granted to unrepresented litigants like himself. And the whole point of the proposed proceeding is for this to be brought as a representative proceeding, as the claims duplicate entirely the claims already brought on Mr Knight’s own behalf in proceeding VID 595/2021.

14    Should leave to institute proceedings be refused? The question then is whether the need for Mr Knight to obtain leave to represent group members in the proposed proceeding, and the unlikelihood of that leave being granted, means that leave should be refused under r 2.27A to file the proceeding at all.

15    Mr Knight’s affidavit states that Anderson J (the docket judge in proceeding VID 595/2021) has refused leave for that proceeding to be reconstituted as a representative proceeding: see [7] above, point (d). I would not grant leave under r 2.27A to permit proceedings to be brought that had the sole purpose of reagitating whether Mr Knight should be permitted to act on behalf of other prisoners in respect of the claims that are common to proceeding VID 595/2021 and this proposed proceeding, if that argument had been had and lost in proceeding VID 595/2021 before the docket judge. As noted, one circumstance in which leave will be refused under r 2.27A is if a proceeding seeks to reagitate matters that have previously been determined.

16    However, a review of the transcripts, documents filed and the orders made in VID595/2021 indicates that Anderson J has not been asked to rule on whether that proceeding should be reconstituted as a representative proceeding. There is a letter on the court file from Mr Knight dated 17 September 2021 recording that a Judicial Registrar advised in September 2021 that the first version of Mr Knight’s originating application did not meet the requirements for a representative action. In the version of the originating application in VID595/2021 attached to that letter, the statement “The Applicant sues in a representative capacity on behalf of all 1,100 prisoners at Port Phillip Prison” is struck out.

17    As noted, an unrepresented litigant requires leave to act on behalf of a representative group, and leave is almost invariably refused. However, it would not be a proper exercise of the power in r 2.27A of the Rules to refuse to accept documents for filing on that basis. Although it is most unlikely that leave will be granted to Mr Knight, it cannot be said that this proceeding is manifestly untenable, and the power in r 2.27A is reserved for the clearest of cases. I note that, in Burt v Commonwealth [2023] FCA 55 at [62], Katzmann J left open the question of whether the need for an unrepresented person to obtain leave to bring a representative proceeding was relevant to whether the proceeding should be dismissed summarily. The question of whether Mr Knight should be given leave should be decided by the docket judge.

conclusion

18    For these reasons, Mr Knight is granted leave to file the originating application starting a representative proceeding and supporting affidavit, both dated 12 August 2026.

Associate:

Dated:    8 October 2026