order under s 37AO of the Federal Court of Australia Act 1976 (Cth) sought against the respondent
where that allegation has been rejected and appeals exhausted
where the respondent has repeatedly engaged in abuses of process
Quick Take
1Persistent re-agitation of an issue conclusively determined — here, the existence of an employment relationship — across multiple courts and tribunals constitutes an abuse of process and, when combined with the pursuit of hopeless applications and the making of scandalous and baseless allegations, satisfies the threshold for a vexatious proceedings order under s 37AO of the Federal Court of Australia Act 1976 (Cth).
2Where a potential stay under s 60 of the Bankruptcy Act 1966 (Cth) creates uncertainty about the continuation of an interlocutory application for a vexatious proceedings order, the Court may exercise its power under s 23 of the FCA Act and r 1.32 of the Federal Court Rules to treat the evidence and submissions from the original proceeding as events in a fresh proceeding, provided there is no concurrent pursuit of the same relief and no prejudice to the respondent.
3The word 'frequently' in s 37AO(1)(a) is relative and contextual; the number of proceedings may be small if the litigant repeatedly attempts to re-litigate or re-agitate issues previously determined, and the Court may have regard to proceedings across all Australian courts and tribunals including interlocutory applications within those proceedings.
