Vexatious Proceedings Act 2008

This Act is the Vexatious Proceedings Act 2008.

This Act commences on a day to be appointed by proclamation.

In this Act—

appropriate authorised court—see section 12.

appropriate registrar for an authorised court means—

in relation to the Supreme Court—the Prothonotary of the Supreme Court, or

in relation to the Land and Environment Court—the Registrar of that Court, or

in relation to the Industrial Court—the Industrial Registrar within the meaning of the Industrial Relations Act 1996.

Australian court or tribunal means a court or tribunal of the Commonwealth or of a State or Territory.

authorised court means any of the following courts—

the Supreme Court,

the Land and Environment Court,

the Industrial Court.

decision includes determination.

institute, in relation to proceedings—see section 5.

order includes declaration and injunction.

proceedings—see section 4.

vexatious proceedings—see section 6.

vexatious proceedings order means an order made under section 8.

Note—

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

A reference in this Act to a person acting in concert with another person in instituting or conducting proceedings does not include a reference to a person who is so acting as an Australian legal practitioner or representative for the proceedings.

(Repealed)

Notes included in this Act do not form part of this Act.

In this Act, proceedings includes—

any civil proceedings, criminal proceedings or proceedings before a tribunal, and

any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and

any proceedings taken in connection with or incidental to proceedings pending before a court or tribunal, and

any interlocutory proceedings or applications, or procedural applications, taken in connection with or incidental to civil proceedings, criminal proceedings or proceedings before a tribunal, and

any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way.

In this Act, institute, in relation to proceedings, includes—

for civil proceedings—the taking of a step or the making of an application that may be necessary before proceedings can be started against or in relation to a party, and

for proceedings before a tribunal—the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal, and

for criminal proceedings—the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender, and

for civil or criminal proceedings or proceedings before a tribunal—the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings.

A reference in this Act to instituting proceedings includes a reference to instituting—

proceedings generally, and

proceedings in relation to a particular matter, and

proceedings against or in relation to a particular person, and

proceedings in a particular court or tribunal.

In this Act, vexatious proceedings includes—

proceedings that are an abuse of the process of a court or tribunal, and

proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and

proceedings instituted or pursued without reasonable ground, and

proceedings that are conducted to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive of the person who instituted the proceedings.

This Act does not limit or otherwise affect any inherent jurisdiction or any powers that a court or tribunal has apart from this Act to restrict vexatious proceedings.

When orders may be made An authorised court may make an order under this section (a vexatious proceedings order) in relation to a person if the court is satisfied that—

the person has frequently instituted or conducted vexatious proceedings in Australia, or

the person, acting in concert with a person who is subject to a vexatious proceedings order or who is referred to in paragraph (a), has instituted or conducted vexatious proceedings in Australia.

For the purposes of subsection (1), an authorised court may have regard to—

proceedings instituted or conducted in any Australian court or tribunal (including proceedings instituted or conducted before the commencement of this section), and

orders made by any Australian court or tribunal (including orders made before the commencement of this section), and

evidence of the decision, or a finding of fact, of any Australian court or tribunal hearing such proceedings or making such orders, even if that evidence would otherwise not be admissible by virtue of section 91 of the Evidence Act 1995.

An authorised court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

Orders may be made on court’s own motion or on application An authorised court may make a vexatious proceedings order of its own motion or on the application of any of the following persons—

the Attorney General,

the Solicitor General,

the appropriate registrar for the court,

a person against or in relation to whom another person has instituted or conducted vexatious proceedings,

a person who, in the opinion of the court, has a sufficient interest in the matter.

An application for a vexatious proceedings order may be made by a person referred to in subsection (4) (e) only with the leave of the authorised court.

A judicial officer, member or registrar of a court or tribunal may make a recommendation to the Attorney General that he or she consider making an application for a vexatious proceedings order in relation to a specified person.

Orders that may be made by Supreme Court The Supreme Court may make any one or more of the following vexatious proceedings orders in relation to a person—

an order staying all or part of any proceedings in New South Wales already instituted by the person,

an order prohibiting the person from instituting proceedings in New South Wales,

any other order that the Court considers appropriate in relation to the person.

Orders that may be made by Land and Environment Court The Land and Environment Court may make any one or more of the following vexatious proceedings orders in relation to a person—

an order staying all or part of any proceedings in the Court already instituted by the person,

an order prohibiting the person from instituting proceedings in the Court,

any other order that the Court considers appropriate in relation to proceedings by the person in the Court.

Orders that may be made by Industrial Court The Industrial Court may make one or more of the following vexatious proceedings orders in relation to a person—

an order staying all or part of any proceedings in the Industrial Relations Commission, whether in Court Session or otherwise,

an order prohibiting the person from instituting proceedings in the Industrial Relations Commission, whether in Court Session or otherwise,

another order the Court considers appropriate in relation to proceedings by the person in the Industrial Relations Commission, whether in Court Session or otherwise.

A vexatious proceedings order does not stay, or prohibit a person from instituting or conducting, any criminal proceedings that are taken by the person in connection with or incidental to criminal proceedings against the person, except as expressly specified in the order.

A vexatious proceedings order does not stay, or prohibit a person from making, a bail application (within the meaning of the Bail Act 2013).

Note—

Section 73 of the Bail Act 2013 provides that a court may refuse to hear a bail application if satisfied that the application is frivolous or vexatious, is without substance or otherwise has no reasonable prospect of success.

An authorised court may, by order, vary or set aside a vexatious proceedings order that the court has made.

An authorised court may make the order of its own motion or on the application of—

the person subject to the vexatious proceedings order, or

a person referred to in section 8 (4).

An application may be made by a person referred to in section 8 (4) (e) only with the leave of the authorised court.

An authorised court may decline to consider an application to vary or set aside a vexatious proceedings order made by the person subject to the order if the court is not satisfied that the application is materially different from an earlier application to vary or set aside the same order that was not successful.

An authorised court may, by order, reinstate a vexatious proceedings order prohibiting a person from instituting proceedings if—

the court made the vexatious proceedings order, and

the court is satisfied that, within 5 years of the vexatious proceedings order being set aside, the person has—

instituted or conducted vexatious proceedings in an Australian court or tribunal, or

acted in concert with another person who has instituted or conducted vexatious proceedings in an Australian court or tribunal.

An authorised court that reinstates a vexatious proceedings order may make any other order that the court considers appropriate in relation to the person, including, for example, an order varying the vexatious proceedings order.

An authorised court may make an order under this section of its own motion or on the application of a person referred to in section 8 (4).

An application may be made by a person referred to in section 8 (4) (e) only with the leave of the authorised court.

An authorised court must not reinstate a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

This section applies in relation to each of the following orders (a notifiable order)—

a vexatious proceedings order,

an order varying or setting aside a vexatious proceedings order,

an order reinstating a vexatious proceedings order,

an order made under section 10 (2).

The appropriate registrar for an authorised court that makes a notifiable order must arrange for a copy of the order to be—

published in the Gazette within 14 days after the order is made, and

recorded in a publicly available register kept for the purposes of this Act in the registry of the Supreme Court at Sydney within 7 days after the order is made.

The appropriate registrar for an authorised court may also arrange for details of a notifiable order that the court has made to be published in another way (for example, on an internet website).

The appropriate registrar for an authorised court may arrange for a copy of a notifiable order that the court has made to be removed from the register referred to in subsection (2) (b) if the registrar is satisfied that the person in relation to whom the order was made has died.

A failure to comply with a requirement of this section in relation to a notifiable order does not affect the validity or enforceability of the order.

For the purposes of this Part, an appropriate authorised court in relation to the granting of leave to institute proceedings prohibited by a vexatious proceedings order is—

the authorised court that made the vexatious proceedings order, and

in the case of a vexatious proceedings order made by the Supreme Court that operates to prohibit proceedings being instituted in the Land and Environment Court—the Land and Environment Court, and

in the case of a vexatious proceedings order made by the Supreme Court that operates to prohibit proceedings being instituted in the Industrial Relations Commission, whether in Court Session or otherwise—the Industrial Court.

(Repealed)