The Vexatious Proceedings Act 2008 (NSW) (Act), which commenced on 1 December 2008, expands the powers of certain courts in New South Wales to make orders restricting proceedings by vexatious litigants. The Act is based upon model legislation approved by the Standing Committee of Attorneys General. Both Queensland and the Northern Territory have already introduced legislation consistent with the model legislation.

Vexatious Proceedings

A vexatious litigant is a person who "frequently and persistently seeks to commence legal action without reasonable grounds or for improper purposes". The Act defines "vexatious proceedings" as proceedings:

  • that are an abuse of the process of a court or tribunal, and
  • instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and
  • instituted or pursued without reasonable ground, and
  • conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

According to the Explanatory Note that accompanied the Bill, actions taken by vexatious litigants can often result in the "waste of public resources, the harassment of defendants in litigation and the incurring of unnecessary costs". The Second Reading Speech notes that the legislation seeks to protect the:

"fundamental right of citizens to approach the courts to seek justice... while preserving the efficiency of the judicial system and shielding other participants in the judicial system from unmeritorious actions".

Vexatious Proceedings Orders

The test under previous New South Wales legislation provided that a court could only make an order to restrain a vexatious litigant if they were satisfied that the litigant had "habitually and persistently and without any reasonable ground" instituted vexatious proceedings. In determining whether this test was satisfied, courts were limited to examining action taken by a litigant in New South Wales. Under the new Act, an authorised court (the Supreme Court, the Land and Environment Court and the Industrial Court) may make a vexatious proceedings order where it is satisfied that the person has "frequently instituted or conducted vexatious proceedings in Australia". The court may also make an order in respect of a person acting in concert with a person who is subject to a vexatious proceedings order.

Previously, only the Attorney-General or the person forced into wrongful litigation could make an application for an order to restrain a vexatious litigant. The new Act allows an authorised court to make a vexatious proceedings order of its own motion, or on the application of any of the following persons:

  • Attorney General or Solicitor General
  • Registrar of the court
  • a person against or in relation to whom another person has instituted or conducted vexatious proceedings, or
  • a person who, in the opinion of the court, has a sufficient interest in the matter (and who has first obtained leave of the court).

Consequences Of Vexatious Proceedings Orders

When a vexatious proceedings order is made, the court can order a stay of all, or part, of any proceedings already instituted by the person, or prohibit the person from instituting proceedings.

A person who is the subject of a vexatious proceedings order may apply to an authorised court for leave to institute proceedings that are the subject of an order. The court may dispose of any application for leave by either granting the application or dismissing it. There is no appeal from a decision disposing of the application as, according to the Second Reading Speech:

"vexatious litigants tend by their nature to take any action in any way possible to question a court's decision regardless of the merit of their position".

Register Of Vexatious Proceedings Orders

Once a vexatious proceedings order is made, the order will be published in the Gazette, recorded in a publicly available register in the Sydney registry of the Supreme Court and on the Supreme Court website.

It is hoped that the Act will limit vexatious proceedings through the expansion of the categories of people who are eligible to make an application for a vexatious proceedings order, and in light of the fact that to grant such an order authorised courts now only need to be satisfied that the person "frequently instituted or conducted vexatious proceedings".

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.