12 March 1991 - Current
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.
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  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
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.