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12 March 1991 - Current

 
VEXATIOUS PROCEEDINGS BILL 2014
Page 369
19 February 2014
ASSEMBLY Statement of Compatibility CLARK
                        VEXATIOUS PROCEEDINGS BILL 2014
                           Statement of compatibility
Mr  CLARK  (Attorney-General)  tabled  following statement  in  accordance  with
Charter of Human Rights and Responsibilities Act 2006:
  In  accordance  with   section  28  of  the   Charter  of  Human  Rights   and
  Responsibilities  Act  2006  (the  charter  act), I  make  this  statement  of
  compatibility with respect to the Vexatious Proceedings Bill 2014.
  In  my opinion, the  Vexatious  Proceedings Bill  2014,  as introduced to  the
  Legislative Assembly,  is  compatible with human  rights  as set  out  in  the
  charter act. I base my opinion on the reasons outlined in this statement.

  Overview
  The Vexatious Proceedings Bill 2014 introduces a  comprehensive new regime for
  the management and prevention  of vexatious litigation in Victorian courts and
  tribunals.
  Human rights issues
  Human rights protected by the charter act that are relevant to the bill
  The right  to a  fair hearing  (section 24),  the right  not  to have  privacy
  unlawfully or arbitrarily interfered  with (section 13)  and  the right for  a
  person  deprived of liberty to apply  to a  court for  an order  regarding the
  lawfulness of his or her detention (section 21(7)) are relevant to the bill.

  Right to a fair hearing
  Section 24 of the charter act provides that a party to  a civil proceeding has
  the  right to  have  the proceeding decided  by  a competent, independent  and
  impartial court  or  tribunal  after  a fair and public hearing. This right is
  relevant to several clauses of the bill, including:
Clauses 11,  17, 19  and 29,  which enable  specified  courts and  VCAT to  make
        various types  of 'litigation  restraint  orders'. A  limited litigation
        restraint  order  may prevent  a  person from  making  or  continuing an
        interlocutory  application in  a  proceeding without  leave. An extended
        litigation  restraint  order  may  prevent  a  person from commencing or
        continuing proceedings against  a specified person  or  in respect of  a
        matter without leave. 


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A general litigation restraint order may prevent a person from commencing or continuing any proceedings in a Victorian court or tribunal without leave. These orders can also be revoked or varied under clause 69. Clauses 35 and 36, which enable specified courts and VCAT to make an order against a person who is acting in concert with a person who is subject to a litigation restraint order. For example, the court may strike out an interlocutory application made by the person or stay a proceeding commenced by the person. Clauses 37 to 39, which enable specified courts and VCAT to make an order preventing a person from appealing against decisions refusing leave to make or continue an interlocutory application in a proceeding or refusing leave to commence or continue a proceeding. Clause 74, which enables specified courts and VCAT to make an order preventing a person from seeking to have the litigation restraint order to which they are subject varied or revoked. Decisions in other jurisdictions have held that the right to a fair hearing includes a right of access to the courts. The Victorian Court of Appeal has held that, to the extent that the fair hearing right in section 24 of the charter act includes a right of access to the courts, that right is not absolute but may be subject to reasonable restrictions aimed at achieving legitimate objectives. These legitimate objectives include restricting the access of vexatious litigants to prevent the overuse of court services by a few with consequent unavailability and cost consequences for the community and most litigants (Kay v. Attorney-General (Vic) & Macintosh (unreported, Court of Appeal, 19 May 2009); Attorney-General (Vic) v. Kay [2009] VSC 337). The bill's regime for the making of litigation restraint orders serves the legitimate objectives of preventing abuse of the courts' and VCAT's processes, preventing vexatious litigants from bringing unmeritorious cases, and minimising the cost to the community of such behaviour. Clauses 35 and 36 enable the courts and VCAT to prevent the deliberate circumvention of litigation restraint orders. The provisions relating to appeal restriction orders and variation or revocation application prevention orders provided for by clauses 37 to 39 and 74 allow the courts and VCAT to prevent the repeated commencement of vexatious litigation by a person, ensuring that court and judicial resources are more efficiently and fairly allocated, reducing delays for meritorious matters and preventing repeated abuse of the courts' and VCAT's processes. The bill does not remove the right of a person subject to a litigation restraint order to issue proceedings, and thus does not remove their access to the courts and VCAT. A person subject to a litigation restraint order will be required to seek leave before commencing proceedings or making an application; if a proceeding has reasonable grounds and is not vexatious, leave will be granted. The bill also contains safeguards, including an express right to be heard before a litigation restraint order, acting in concert order or appeal restriction order is made, and express rights to appeal from the making of litigation restraint orders and acting in concert orders. A person subject to a litigation restraint order may also seek leave to apply for the variation or revocation of the order, unless the person is subject to a variation or revocation application prevention order. Finally, the bill also allows the court or VCAT to determine an application by conducting an oral hearing if there are exceptional circumstances and it is appropriate to do so in the interests of justice in order to ensure procedural fairness in a particular case. Accordingly, the provisions of the bill do not limit the right set out in section 24 of the charter act. Right not to have privacy unlawfully or arbitrarily interfered with Section 13 of the charter act provides that a person has the right not to have his or her privacy unlawfully or arbitrarily interfered with. This right may be relevant to clause 85 of the bill, which requires the Attorney-General to cause a copy of any order given to the Attorney-General under the bill to be published in the Government Gazette. The Attorney-General may also publish the details of the orders in another way. This may result in the publication of the name of a person subject to an order, and in the case of an extended litigation restraint order, the name of a person protected by the order. In my opinion, clause 85 of the bill does not limit the right to privacy as the publication of a person's name by the Attorney-General is not unlawful or arbitrary. Publication serves the important purposes of informing the public, the courts and VCAT, in order to ensure that the objectives of the bill are achieved. Further, the bill allows the Attorney-General, at his or her discretion, to remove the name of a person protected by an extended litigation restraint order prior to publication. Additionally, a copy of an order that relates to intervention order legislation must have removed from it the name of any person protected by the order, including his or her child, unless the court, when making the order, otherwise orders. Right to liberty and security of person Section 21(7) of the charter act provides that a person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of his or her detention. This right may be relevant to extended and general litigation restraint orders made under the bill (clauses 17, 29 and 30) insofar as the order may require a person deprived of liberty to obtain leave of the court before they can make an application regarding the lawfulness of their detention, including an application for a writ of habeas corpus. In my opinion, the right to liberty and security of person is not limited by the bill. The bill requires a person in detention who is also subject to a general or extended litigation restraint order to seek leave of the court before seeking an order regarding the lawfulness of his or her detention. Leave will be granted if the proceeding is not vexatious and there are reasonable grounds for the proceeding. A genuine application for an order about the lawfulness of detention would meet this test and the application would be allowed to proceed. The bill does not prevent a person subject to a general or extended litigation restraint order from bringing a genuine application relating to the lawfulness of his or her detention. Robert Clark, MP Attorney-General
                        VEXATIOUS PROCEEDINGS BILL 2014
                                 Second reading

  Mr CLARK (Attorney-General) -- I move:
  That this bill be now read a second time.
Speech as  follows incorporated into  Hansard  in accordance with  resolution of
house:
  The effective management  and control of vexatious litigation is important  to
  ensure  an efficient and  effective justice system.  Although small in number,
  some  individuals  use  the  mechanisms   of  the  law   to  repeatedly  bring
  unmeritorious actions against other individuals and against organisations.

  These litigants  consume a disproportionate amount of court and  tribunal time
  and resources, which  creates  delays in  the  courts  and reduces  access  to
  justice for  other  members of  the  community  who have  meritorious  claims.
  Vexatious litigants can also have a significant financial and emotional impact
  on the people they sue, as well as on themselves.
  Section 21  of  the Supreme Court Act 1986 currently enables the Supreme Court
  to declare a person   to  be  a  vexatious  litigant, which prevents them from
  bringing further litigation  in a Victorian  court or tribunal  without  first
  obtaining leave. However, this regime has a  number of serious limitations, as
  identified  by the Victorian  parliamentary Law Reform Committee in its report
  into  vexatious litigants. For example, section 21 sets  a very high threshold
  for the  making of a declaration, which limits the extent to  which the  court
  can  intervene  at  an early stage to manage less  serious  or  less  frequent
  vexatious behaviour.

  The bar on obtaining leave  to bring new proceedings is  also low and fails to
  act as a barrier to vexatious litigation. Further, courts  and tribunals other
  than the  Supreme Court do not have similar powers and are therefore unable to
  control vexatious behaviour in their own jurisdictions.
  The current regime in section 21 has therefore  been  of  limited  utility  in
  controlling  vexatious behaviour in the courts and tribunals. The introduction
  of the  bill  aims  to  overcome these limitations by repealing section 21 and
  introducing a comprehensive new  regime for the  management and prevention  of
  vexatious  litigation. Specifically, the bill  provides a range  of new powers
  for  the Supreme, County  and Magistrates courts and  VCAT to manage vexatious
  behaviour more effectively and at an earlier stage.

  The bill  also aligns the existing  regimes in relation to vexatious litigants
  under  the  Family  Violence Protection  Act  2008  and  the  Personal  Safety
  Intervention Orders Act 2010 (the intervention order legislation) with the new
  regime.  The  bill makes  specific  provision  for the  Magistrates  Court and
  Children's Court to  make orders in relation to vexatious litigation conducted
  under  those  acts, which will  ensure  that a single  framework  for managing
  vexatious litigation operates across Victoria.
  The  bill  enables  specified  courts  and  VCAT  to  make  various  types  of
  'litigation restraint orders', which increase in restrictiveness in accordance
  with a person's  litigation  history and  pattern  of behaviour.  This  tiered
  approach ensures  that a person's  access  to the courts  can be appropriately
  limited to the extent necessary to deal with their behaviour.

  The bill applies to proceedings where a litigant's conduct is  so unreasonable
  as to trigger court  action  to  prevent  them  continuing  to  engage in such
  conduct. A range of behaviours are covered by the  term 'vexatious', including
  abuse of  court process, proceedings that are commenced or conducted to harass
  or annoy another party, and proceedings  that are commenced or pursued without
  reasonable grounds or to achieve another wrongful purpose.
  At the lowest level, a limited litigation restraint order may be made where  a
  person has made  two or more vexatious applications in a proceeding. The order
  can  prevent  a  person   from  continuing  or  making  further  interlocutory
  applications in the proceeding, without  leave.  This  order  encourages early
  intervention  and sends a clear message that vexatious  litigation of any kind
  will not be tolerated in the courts or VCAT.

  The mid-level order, an extended litigation restraint order, can be made where
  a person has frequently commenced or conducted vexatious proceedings against a
  specified person or other entity, or in relation  to  a specified matter. This
  order applies more broadly than a limited order and may prevent a  person from
  continuing or commencing  any  proceedings against a  person specified in  the
  order or in  relation  to  the  matter  specified in the order, without leave.
  Extended orders can also be made in relation to vexatious litigation conducted
  under the intervention order legislation. An extended order aims  to deal with
  a vexatious  litigant who attempts to  harass an individual or organisation by
  repeatedly  bringing  litigation  against  them,  or  alternatively  seeks  to
  repeatedly re-litigate the same matter.
  The highest  level order is a  general litigation restraint  order. This order
  can be made  where a person has  persistently and without  reasonable  grounds
  commenced or conducted vexatious proceedings.

  The order  may  prevent a person from continuing or commencing a proceeding in
  any Victorian court or tribunal, without leave. This order is reserved for the
  most serious vexatious  behaviour  and circumstances  in  which a lower  level
  order would be ineffective. Due to its gravity, the  bill  gives  the  Supreme
  Court exclusive power to make this order.
  In deciding whether to make a litigation restraint order, a  court or  VCAT is
  able  to  take  into account  any  matter it considers  relevant,  including a
  person's full  litigation  history (in both  Victoria and in  other Australian
  jurisdictions)  and the manner in which the person has conducted litigation in
  the past. This overcomes a  recognised limitation of the current system, which
  does not allow for  consideration  of  some  types of prior litigation such as
  interlocutory applications and appeals from interlocutory decisions.

  Persons  who  are  sued  by  vexatious  litigants  and  other  persons with  a
  sufficient interest in the matter will for the first time be able to apply for
  limited  and  extended litigation restraint orders. This provides a  mechanism
  for  such  persons  to  protect  their own  interests  and  prevent  vexatious
  litigation against them.  However, to ensure that  the process is not  abused,
  the person  will be required to obtain leave from the relevant  court or  VCAT
  before they are able to make an application.
  A new threshold test is provided for in relation  to applications for leave by
  a  person  subject  to  a  litigation  restraint order who wishes to bring new
  proceedings. The litigant must  establish that the  proposed proceeding is not
  vexatious and that there are reasonable grounds for the proceeding. The person
  named  in the proposed proceeding  (e.g. the proposed  defendant) will only be
  notified of the leave application if the court is 


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proposing to grant leave, at which point they will be given an opportunity to oppose the grant of leave. This will allow the courts and VCAT to dispose of, or manage through the imposition of conditions, unmeritorious litigation before it commences, and 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. Leave applications will also ordinarily be determined 'on the papers' (that is, on the basis of written submissions rather than at an oral hearing), unless the court considers that there are exceptional circumstances and that an oral hearing is appropriate in the interests of justice. The bill also enables specified courts and VCAT to make orders against persons who are acting in concert with a person who is subject to a litigation restraint order. The court will be able to make any order they consider appropriate in such circumstances, including a costs order or an order staying the proceeding. The court will also be able to make a limited or extended litigation restraint order (but not a general litigation restraint order) in relation to the person. These provisions prevent the deliberate circumvention of orders made under the regime, for example by preventing a vexatious litigant from commencing proceedings in the name of a company that they control rather than in their own name. Specified courts and VCAT are also given powers to limit appeal rights from certain decisions and to limit a person's ability to apply for the variation or revocation of a litigation restraint order. These orders can be made where there is evidence that a person who is subject to a litigation restraint order has frequently brought vexatious applications seeking leave to commence new proceedings or seeking leave to vary or revoke the litigation restraint order. The bill provides safeguards to protect the rights of persons subject to a litigation restraint order and other orders under the bill, including an express right to be heard before an order is made against them, and express rights to appeal from the making of an order and to seek variation or revocation of a litigation restraint order (both subject to leave). The development of this bill has benefited from feedback and advice provided by the Civil Procedure Advisory Group, chaired by the Chief Justice of the Supreme Court, and I thank members for their input and contribution to the development of these reforms. In creating a comprehensive new regime for the management and prevention of vexatious litigation in Victorian courts and tribunals, including the disposal of unmeritorious litigation at an earlier stage, the bill will improve the effectiveness of the justice system and allow the court and judicial resources to be more efficiently allocated to the determination of meritorious cases. I commend the bill to the house. Debate adjourned on motion of Mr PAKULA (Lyndhurst). Debate adjourned until Wednesday, 5 March.