Hansard debates

                        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