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