APPEALS — Challenges to vexatious proceedings order — No procedural unfairness or miscarriage of discretion in the making of the vexatious proceedings order — No appealable error demonstrated in primary judge’s finding that the applicant had “frequently instituted or conducted vexatious proceedings in Australia” within the meaning of s 8(1)(a) of the Vexatious Proceedings Act 2008 (NSW)
APPEALS — Procedure — Parties on appeal — Vexatious litigant — Leave to institute proceedings — Where applicant has failed substantially to comply with requirements of s 14(3) of the Vexatious Proceedings Act 2008 (NSW) — Court obliged by s 15(1) of the Vexatious Proceedings Act 2008 (NSW) to dismiss application for leave to institute proceedings regarding summary dismissal and related orders
Quick Take
1A person subject to a vexatious proceedings order who seeks to challenge on appeal orders other than the vexatious proceedings order itself (here, summary dismissal and indemnity costs orders) requires leave to institute proceedings under s 14 of the Vexatious Proceedings Act 2008 (NSW). Absent an affidavit substantially complying with s 14(3), the Court must dismiss the application under s 15(1)(a). The Court assumed, without deciding, that no leave was required to appeal the vexatious proceedings order itself.
2There is no denial of procedural fairness where a vexatious proceedings order is framed more broadly than the notice of motion (extending to proceedings brought through entities controlled by the litigant), if the respondent's written submissions gave adequate notice of the broader formulation and the litigant failed to respond. Self-representation does not alter that conclusion.
3Obiter: claims in negligence and breach of fiduciary duty against a former spouse appointed trustee for sale of matrimonial property under family law orders are derived from those orders. On the facts, it was unreasonable not to raise them in the FCFCOA (Div 2) under its accrued jurisdiction, so an Anshun estoppel would bar them in the Supreme Court. Non-compliance with an unchallenged order of the primary court is a significant consideration in any grant of leave under s 16.
