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12 March 1991 - Current

 
VEXATIOUS PROCEEDINGS BILL 2014
Page 371
19 February 2014
ASSEMBLY Second Reading CLARK
                        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.