12 March 1991 - Current
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.