Vexatious Proceedings

The Vexatious Proceedings Act 2008 replaced section 84 of the Supreme Court Act 1970.

The Act significantly extends the scope of the vexatious litigant provisions and includes all proceedings (including any interlocutory proceedings) in all courts and tribunals of all Australian jurisdictions (see sections 4 and 8).

Section 6 sets out what is meant by vexatious proceedings and includes proceedings that are an abuse of process, that are instituted or conducted in a way so as to harass or annoy, or are without reasonable ground. The test for the making of a vexatious proceedings order (section 8) is whether a person has frequently instituted or conducted vexatious proceedings.

The question of whether a person is acting vexatiously can be raised with the Attorney General by members of the public or by referral from the judiciary. Where there is a real possibility that an application might be appropriate, the Crown Solicitor is instructed to advise on the merits of an application under the Act. After considering the advice of the Crown Solicitor, Legal prepares a submission for the Attorney General with a recommendation as to whether proceedings should be commenced against the person and the nature of the orders to be sought (for possible orders see section 8).

In addition to the criteria set out in the Act, other relevant factors include:

• the financial status of the person, including whether they are an undischarged bankrupt
• the availability of other mechanisms to control the vexatious behaviour
• the identity of the defendants to the vexatious proceedings, (in particular if they are the State or state agencies consideration must be given to the costs effectiveness of the proceedings)
• the nature of the vexatious proceedings (eg civil proceedings, AVOs).

If an order is made, any further proceedings can only be brought with leave of the appropriate court. The applicant is required to serve notice on the Attorney General, Solicitor General and any other relevant party. Before leave is granted, the Court must give the Attorney General and Solicitor General (amongst others) the opportunity to appear and be heard on the application.

The Supreme Court of NSW website contains further information about vexatious litigants and the Vexatious Proceedings Act 2008.

For any additional information about the Vexatious Proceedings Act 2008 please contact Legal.