Vexatious proceedings

Section 6 of the Act defines vexatious proceedings:

(a) proceedings that are an abuse of the process of a court or tribunal, and

(b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and

(c) proceedings instituted or pursued without reasonable ground, and

(d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

In New South Wales, the Supreme Court, the Land and Environment Court and the Industrial Court are authorised to make vexatious proceedings orders. The Supreme Court may make orders that impact upon ongoing proceedings in any court or tribunal in New South Wales. However, the Land and Environment Court and the Industrial Court may only make orders concerning proceedings commenced in their own jurisdictions.

The court can make an order of its own motion or any of the following people can apply to have the order made:

(a) the Attorney General, either on their own or on the recommendation of a judicial officer, member or registrar of a court or tribunal,

(b) the Solicitor General,

(c) an appropriate registrar for the Supreme Court, Land and Environment Court or Industrial Court,

(d) a person against or in relation to whom another person has instituted or conducted vexatious proceedings,

(e) with leave of the court, a person who, in the opinion of the court, has a sufficient interest in the matter.

The Supreme Court can make orders that stay all or part of any current New South Wales proceedings and orders that prohibit the person from starting any new proceedings in New South Wales without the Court's leave. The Land and Environment court and the Industrial court can make similar orders but only in relation to proceedings in their courts.

The court can vary or set aside vexatious proceedings orders either on its own motion, on the application of the person subject to the order, or on the application of the person who applied for the order.

An authorised court can also reinstate a vexatious proceedings order if, within 5 years from the date the order was set aside, the person commences or conducts other vexatious proceedings in any Australian Court or Tribunal or acts in concert with another person who starts or conducts vexatious proceedings. The order for reinstatement can only be made by the authorised court responsible for making the original vexatious proceedings order.

Vexatious proceedings may be commenced against numerous different individuals or several proceedings may be commenced against a particular person, who becomes known as the "person aggrieved".

Vexatious proceedings orders can be made if an authorised court is satisfied that a person has frequently started or conducted vexatious proceedings or that a person is acting in concert with a person who is the subject or a vexatious proceedings order.

When deciding to make a vexatious order, the court can look at all proceedings commenced or conducted by that person in any Australian court or tribunal and any orders made in any Australian court or tribunal.

A court cannot make a vexatious proceeding order unless the person concerned has been heard or given the opportunity to be heard.

All vexatious proceedings orders are published in the Government Gazette and recorded on the Supreme Court's website.

If a person commences new court proceedings contrary to previous vexatious proceedings orders, the new proceedings will be stayed until they are dismissed. If not dismissed earlier, the court will automatically dismiss the new proceedings after 28 days.

To seek leave to commence proceedings you should file

(1) a summons; and

(2) an affidavit that:

(a) lists all occasions you have applied for leave either under section 14 of the Act, section 84 of the Supreme Court Act 1970 or section 70 of the Land and Environment Court Act 1979 (the two pieces of legislation previously governing vexatious proceedings in New South Wales).

(b) lists all other proceedings you have started in Australia, and

(c) discloses all facts material to the application, whether supporting or adverse to the application, that are known to the applicant.

Unless you are ordered to do so, you should not serve the application on any other person.

The court can either grant your application or dismiss it. The court must dismiss your application if your affidavit does not substantially comply with these requirements, if the proceedings are vexatious, or if there are no undeniable ( prima facie) grounds for the proceedings.

Before leave is granted, the court will order the applicant to serve all relevant persons and give such people an opportunity to be heard.

Under section 14(6) of the Act, you may not appeal the court's decision to dismiss your application for leave.

Please note that the normal filing fee on the summons is payable. You may apply to have the fee waived or reduced if you are unable to pay the full fee.

The test for whether a proceeding is vexatious is set out by Roden J in Attorney General v Wentworth (1988) 14 NSWLR 481 at 491:

1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they
give rise.

3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.

4. In order to fall within the terms of s 84*:

(a) proceedings in categories 1 and 2 must also be instituted without reasonable ground (proceedings in category 3 necessarily satisfy that requirement);

(b) the proceedings must have been 'habitually and persistently' instituted by the litigant.

*This is a reference to section 84 of the Supreme Court Act 1970. Section 84 was repealed when the Vexatious Proceedings Act commenced on 1 December 2008. You can access historical versions of the Supreme Court Act 1970 from the NSW Legislation website: www.legislation.nsw.gov.au.