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Vexatious Proceedings Act 2008 (NSW) (the Act) allows an authorised Court to make a vexatious proceedings order in relation to a person. To make an order, the Court must be satisfied that the person has frequently instituted or conducted vexatious proceedings in NSW or Australia. Any individual who frequently and persistently takes legal action without reasonable grounds or for improper purposes can be subjected to a vexatious proceedings order under the Act. The Act replaced section 84 of the Supreme Court Act 1970 (NSW).
Vexatious proceedings is defined in section 6 of the Act as including proceedings that are an abuse of process of a court or tribunal, that are instituted or conducted in a way so as to harass or annoy, are without reasonable grounds and are conducted to achieve a wrongful purpose.
Section 8(1) of the Act states that an authorised court may make an order if it is satisfied that:
The Act allows an authorised court to make an order of its own motion or upon the application of persons who are listed at section 8(4) of the Act. These include:
If you are considering making an application under the Act, or want to defend any application brought against you, you may wish to obtain independent legal advice as to your individual circumstances. The Department is unable to provide you with legal advice or representation. To obtain legal advice, you can find a legal practitioner or practice in your area via the online directory of NSW legal practices and solicitors available at www.lawsociety.com.au/register-of-solicitors or seek a referral to a legal practice or solicitor via LawAccess. LawAccess is a free legal service available to anyone in NSW. You can contact LawAccess on 1300 888 529 or via their website at www.legalaid.nsw.gov.au/contact-us.
Where the Attorney General is considering whether to bring any application under the Act, the Attorney General may have regard to a number of factors including whether the matter is of significant public interest which go beyond any rights or interests of the parties involved in the proceedings.
The Supreme Court, Land and Environment Court and Industrial Court can make orders under the Act (see sections 8(7) to 8(8A) of the Act).
The Supreme Court, may make any one or more of the following vexatious proceedings orders in relation to a person:
Any orders made by the Supreme Court will only apply within the New South Wales jurisdiction. For example, matters in the Federal Court initiated in New South Wales will not be subject to an order under the Act.
The Land and Environment Court and the Industrial Court have similar powers, but may only make orders which are limited to their respective jurisdictions.
A vexatious proceedings order does not stay, or prohibit a person from instituting or conducting, any criminal proceedings that are made by the person in connection with or incidental to criminal proceedings against the person, except as expressly specified in the order (section 8(9) of the Act). A vexatious proceedings order also does not stay, or prohibit a person from making a bail application (section 8(10) of the Act).
If an order is made prohibiting that person from instituting proceedings, the person who is the subject of the order is required to seek leave from an appropriate authorised court and serve notice on the Attorney General, Solicitor General, and any other relevant party before commencing any proceeding (see sections 14(2) of the Act and 16(1) of the Act).
The Supreme Court of NSW website contains further information about vexatious litigants and the Act. The website also contains a list of all the vexatious proceedings orders made under the Act and the names of the vexatious litigants.
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