this product is unavailable for purchase using a firm account, please log in with a personal account to make this purchase.

Vexing claims curbed

Feature Articles

Cite as: September 2014 88 (09) LIJ, p.40

The Vexatious Proceedings Act 2014 will manage all types of vexatious litigation in Victoria, ensuring that resources can be better allocated to meritorious claims. 

By Sophie Halewood

The ability to access independent and impartial courts to enforce legal rights and to resolve disputes is a fundamental element of our democratic arrangements. Nevertheless, courts in Australia and overseas have for many years recognised that the right to access the courts is not unrestricted and that there is a need to prevent vexatious litigation, both to prevent the waste of judicial time and resources and to prevent delays for litigants with meritorious claims.1 Clearly defined powers for the courts to make orders preventing vexatious litigation are important to protect the courts and to protect other litigants from the significant stress, time and costs associated with contesting unmeritorious proceedings. The purpose of such orders is “not to impose condign punishment for past litigious misdeeds; it serves instead to shield both the public . . . and the Court itself, whose limited resources and needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits.”2

In Victoria, s21 of the Supreme Court Act 1986 (SCA) provides a mechanism to restrain the ability of a vexatious litigant to bring litigation. Section 21 allows the Supreme Court to make an order preventing a person from continuing or commencing any proceedings in Victoria without leave if satisfied that the person has habitually, persistently and without any reasonable ground instituted vexatious legal proceedings. A limited power also exists in the Family Violence Protection Act 2008 (FVPA) and the Personal Safety Intervention Orders Act 2010 (PSIOA) for the Magistrates’ Court or the Children’s Court to restrain a person from applying for intervention orders, or from seeking to vary, revoke or extend intervention orders, without leave.3

The Vexatious Proceedings Act 2014 (the Act), which received royal assent on 17 June 2014 and which will commence on 31 October 2014 unless proclaimed earlier, will repeal these provisions and establish a new regime to manage vexatious litigation in Victoria. According to the second reading speech, the Act aims to overcome limitations with the current regime which were identified by the Victorian Parliamentary Law Reform Committee, including the courts’ inability to intervene at an early stage and the insufficient barriers to prevent further vexatious litigation.4

Litigation restraint and acting in concert orders

The Act introduces three types of “litigation restraint orders”, which can restrict a person’s access to the courts to varying degrees depending on his or her conduct. This approach “promotes early intervention and aims to provide flexibility for the Courts and VCAT to adopt a proportionate response to a person’s conduct”.5 A graduated system allows limited restrictions to be imposed on a person’s ability to bring specified proceedings, without restricting that person’s ability to litigate altogether. This achieves the Act’s purpose (s1)6 of balancing rights of access to the courts with the need to ensure an efficient justice system.

In particular:

A “limited litigation restraint order” (limited order) can be made where a person has made two or more vexatious interlocutory applications within a proceeding (s11(1)). This order may direct that the person must not make or continue an interlocutory application, or a specified type of interlocutory application, in that proceeding without leave (s12(1)). This order does not affect the person’s right to commence other proceedings.

An “extended litigation restraint order” (extended order) can be made where a person has often started or conducted vexatious proceedings against a person or other entity or in relation to a matter (s17(1)). This order may direct that the person must not continue or commence a proceeding against the person or entity named in the order, or in respect of the matter described in the order, without leave (ss20-22, 24). This order does not affect the person’s right to continue or commence proceedings against a person or entity or in relation to a matter that is not specified in the order.

A “general litigation restraint order” (general order) can be made where a person has persistently and without reasonable grounds commenced or conducted vexatious proceedings (s29(1)). This order may direct that the person must not continue or commence any proceeding in a Victorian court or tribunal without leave (s30(1)). It is anticipated that these orders will be rare, consistent with current authority that such orders are of “a most serious nature and a clear and compelling case must be shown to warrant it”.7

Limited and extended orders can be made by the Supreme, County and Magistrates’ Courts and VCAT,8 while general orders can be made only by the Supreme Court. An extended order made by the Supreme Court has a general application and restrains litigation in all Victorian courts and tribunals, whereas an order made by the County or Magistrates’ Court or VCAT restrains litigation only in the jurisdiction that made the order (s26).

The terms “frequently” and “persistently” are not defined in the Act, though “persistently” is clearly intended to convey a higher threshold than “frequently”.9 The Supreme Court has held that persistently “suggests determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness,”10 and that this threshold can be satisfied by a small number of proceedings if those proceedings are an attempt to re-litigate an issue that has already been determined.11 Other jurisdictions have held that “frequently” is a relative term which must be looked at in the context of the litigation.12 It is expected that Victorian courts will adopt a similar approach.

Importantly, the Act does not require the court or VCAT to make an order if satisfied that the relevant threshold is met. The discretion afforded by the Act provides flexibility in circumstances where an order may be inappropriate, for example where a proceeding is found to be an abuse of process notwithstanding that it was commenced reasonably and conducted in a proper and efficient manner.

The courts or VCAT may also make an “acting in concert order” where a person attempts to circumvent a litigation restraint order by commencing a proceeding which the vexatious litigant is restrained from commencing (s35(1)). Such an order can specify various matters, including that a proceeding commenced by the person is stayed or that the person is liable for costs (s35(3)). These orders do not apply to legal practitioners or others authorised or required by law to act on behalf of another person (s4(2)).

Main changes from current regime

One key reform in the Act is the expansion of the factors that the courts can consider in deciding whether to make an order. Under s3, a proceeding is defined as any matter in an Australian court or tribunal, whether civil or criminal. This includes any proceeding taken in connection with or incidental to a proceeding and any appeal, review or other challenge. In contrast to the current regime, this expressly authorises consideration of interlocutory applications, appeals from interlocutory decisions and proceedings conducted in other Australian jurisdictions.13

Vexatious proceeding is defined to include proceedings that are an abuse of process; proceedings commenced to harass or annoy, cause delay or detriment or for another wrongful purpose; proceedings commenced or pursued without reasonable grounds; and proceedings conducted in a way so as to harass or annoy, cause delay or detriment or achieve another wrongful purpose.14 This definition for the first time enables consideration of the way that a person has conducted a proceeding, rather than focusing solely on whether a proceeding is vexatious having regard to its nature and substance.15 This means that where a person’s conduct results in the harassment of another person or otherwise causes delay or detriment, the proceeding can be regarded as vexatious regardless of whether the person intends those consequences.16

Another key change is the expansion of those who may apply for orders. In addition to the Attorney-General, a person against whom a vexatious application has been made or a vexatious proceeding has been commenced or conducted, and a person with a sufficient interest in the matter, may apply for a limited or extended order with leave (ss10, 16).17 Leave will only be granted if there is merit in the application and it would not be an abuse of process (ss10(3), 16(3)). The leave requirement is intended to ensure that applications are not abused.18 As noted by Justice E.M. Heenan, an application “is not a remedy intended or available to achieve a stay or to prevent the institution of the ordinary run of litigation; rather, it is an extreme remedy reserved for instances where quite hopeless claims are brought, or persisted with, to a degree which causes substantial disruption for the target of the claims and for the administration of justice”.19

Changes have also been made in relation to applications by vexatious litigants for leave to bring further litigation (known as “applications for leave to proceed”). Although there are no limits on the number of applications that can be made, the Act introduces a new process and stricter test for granting leave. For example, the applicant must disclose various matters with the leave application (s56) and the respondent to the proposed application or proceeding will only be notified about the leave application if the court proposes to grant leave (ss59-60).20 This notification process “will save time and money for both the courts and other litigants who would otherwise be required to prepare a defence in the vexatious proceeding”.21

Leave can only be granted if the court is satisfied that the proposed application or proceeding is not vexatious and that it has reasonable grounds (ss51, 53, 55). Unlike s21(4) of the SCA, which requires only that the proposed proceeding is not an abuse of process, the new test requires an applicant to positively establish a proper basis for the proposed proceeding, for example with evidence as to its factual foundations.

There is a presumption that applications for leave to proceed will be determined “on the papers” unless there are exceptional circumstances (s63).22 This reflects a growing trend across Australia for interlocutory applications to be determined without an oral hearing.23 It is anticipated that in most cases the court will be able to rely on the written material filed by the applicant (and respondent, if notified) to determine whether leave should be granted. As noted by the High Court, although oral argument “is a valuable aid to adjudication in some cases . . . an application may be so patently meritorious or unmeritorious that oral argument would be an unnecessary occupation of the court’s time”.24

Other orders

The Act also allows the courts and VCAT to place further restrictions on a person’s ability to commence litigation, over and above the restrictions of a litigation restraint order, as follows:

  • An appeal restriction order can be made where a person has frequently made applications for leave to proceed that are vexatious and it is in the interests of justice to make the order (ss37(1), 38(1)). This order may direct that the person cannot appeal a subsequent decision of a court or tribunal to refuse leave to proceed (ss37(2), 38(2)).
  • A variation or revocation application prevention order can be made where a person has frequently made applications for leave to vary or revoke a litigation restraint order that are vexatious (s74(1)). This order may direct that the person must not continue or make an application for leave to vary or revoke a litigation restraint order (s74(4)). The need for constraints on such applications has been recognised in Victoria in recent years.25

Changes to intervention order regime

As noted, there are limited regimes for managing vexatious litigation in the FVPA and the PSIOA. The Act repeals these regimes and includes specific provisions for vexatious litigation conducted under those Acts and their predecessors (collectively “the intervention order legislation”).

The new provisions for the intervention order legislation are generally aligned with the new regime described above. For example, the Act allows the Magistrates’ Court and the Children’s Court to make an extended litigation restraint order that relates to intervention order legislation, which can restrain a person from continuing or commencing proceedings under the intervention order legislation against a person and his or her child, or in relation to a matter, without leave (see ss18-19, 22-23).

This alignment has resulted in changes to the regimes under the FVPA and PSIOA. For example, all magistrates will be able to make orders restraining litigation, rather than limiting jurisdiction to the Chief Magistrate, Deputy Chief Magistrate and President of the Children’s Court.26 Further, unlike the current regime, an extended order that relates to intervention order legislation can restrain the commencement of all proceedings under the intervention order legislation (rather than only restraining specified applications)27 and can restrain litigation in relation to a specified matter (rather than only restraining litigation against a specified person).28 However, the protective measures established under the FVPA and PSIOA will remain unchanged so as to continue to protect victims of family violence, prohibited behaviour and stalking.29

Conclusion

The new regime for managing vexatious litigants balances a person’s right to access the courts with the need to protect the courts and litigants from vexatious litigation. The regime addresses identified limitations with the current regime and will save time and money for the courts and other litigants with meritorious claims, thereby increasing the efficiency of the justice system.


SOPHIE HALEWOOD is a legal policy officer, civil law policy, at the Department of Justice.

What did you think of this article? Please let us know by leaving a comment below.

1. E.g. Bhamjee v Forsdick & Ors (No 2) [2003] EWCA Civ 1113 at [3].
2. Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [3].
3
. Part 11 of the FVPA and Part 10 of the PSIOA.

4
. Victoria, Parliamentary Debates, Legislative Assembly, 19 February 2014, 371-372 (Robert Clark, Attorney- General).
5. Explanatory memorandum to Vexatious Proceedings Bill 2014, p1.
6. Section references in this article refer to the Vexatious Proceedings Act 2014 unless otherwise indicated.
7
. Attorney-General (Vic) v Weston [2004] VSC 314 (Weston) at [23].

8
. An extended order can also be made by the Magistrates’ and Children’s Courts in relation to vexatious litigation conducted under the FVPA and PSIOA.

9
. Note 5 above, p12; Attorney-General of NSW v Croker [2010] NSWSC 942 at [18]-[19].

10
. Weston at [20], citing Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492.

11
. Weston at [21], citing Brogden v Attorney-General [2001] NZAR 809.
12. E.g. Hambleton & Anor v Labaj [2010] QSC 124 at [56]; Attorney-General of NSW v Wilson [2010] NSWSC 1008 at [12].
13
. Cf Weston at [9]-[13].

14
. Vexatious application is similarly defined: s3.

15
. Cf Attorney-General v Horvath, Senior [2001] VSC 269 at [24]-[28].
16. Attorney General v Chan [2011] NSWSC 1315 at [33].
17
. Only the Attorney-General can apply for general orders: s28.

18
. Note 4 above, at 371.

19
. Granich Partners v Yap [2003] WASC 206 at [34].

20
. See also ss66-67, 80-81.

21
. Note 4 above, at 372.

22
. See also ss71, 84.
23. E.g. Federal Court of Australia, Practice Note CM 8, at 9.3.
24
. Coulter v R (1988) 76 ALR 365 at 368-369.
25. Attorney-General (Vic) v Shaw [2012] VSC 334.
26
. FVPA, s188, PSIOA s160.

27
. FVPA, s193(2), PSIOA s165(2).

28
. FVPA, s193(2), PSIOA s165(2).

29
. E.g. the court can close proceedings to the public or make use of alternative arrangements for proceedings: ss116-117, 128-129.

Comments




Leave message



 
 Security code
 
LIV Social
Footer