Hansard debates

                        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.