Understanding Vexatious Litigants And Law Reforms In Victoria

Write a report on Vexatious and Law Reform.

The Reforms that were introduced

Victoria is one of the places in Australia which is well known for having a strong and healthy democracy that consists of an open justice system. There are courts and tribunals that have been put in place to settle disputes which may occur between community members thereby maintaining law and order. The judges and magistrates are also praised for being independent and acting without fear or favor towards a given party. Hence, everyone is treated equally before the law since none is discriminated against. However, there are specific instances which have led to reforms in this system. For instance, there are cases whereby an individual pushes for unjustified legal proceedings against others. Here, the court may keep reaching the same conclusions that the proceedings have no grounds.

To ensure that the courts and other members of the community are protected from such unnecessary proceedings which are also expensive and time consuming, there was a need to introduce some restrictions to the court access. This is because such unnecessary actions are caused by individuals referred to as vexatious litigants. They tend to sue the same people from time to time, and even extend their frustrations to the lawyers, judges and others who may end up being involved in the disputes. They also tend to habitually appeal every court decision, thereby wasting time and other important resources. It is as a result of these occurrences that Victoria introduced specific reforms in 1928 to ensure restrictions. The laws have been stipulated under section 21 of Supreme Court Act 1986 (Vic). This paper seeks to analyze the reform by considering how it works to handle vexatious litigants.  It supports the argument that the reform is important as it offers protection to courts and court users by ensuring that such individuals who pursue a collateral purpose, or are simply abusing the legal system, are stopped.

In Section 21 of the Supreme Court Act 1986 (Vic), various reforms were introduced to assist in handling vexatious litigants. Previously, the courts would have to keep up with recurring cases that had already been ruled effectively. Fortunately, with this reform, the Attorney-General was given the power to apply for a court order that would declare an individual to be a vexatious litigant. This would end up saving the court’s time and resources because the individual would not be allowed to file or court cases on the same matter. Once approved, the order would indicate that the case had already been ruled, and that he is simply pursuing it further for personal interests that have no merits whatsoever.

The Main Focus of the Reform

This law was based on how the court would respond to a vexatious litigant. It would follow an event whereby the court has already given an individual a chance to present arguments. However, instead of accepting the court ruling, this individual habitually, persistently and without any reasonable ground, continues to pursue the same case by instituting legal proceedings in court or tribunals regarding the same issue and against the same persons. The court order would prevent this person from being given another opportunity to continue pushing for the same case since the judges will be satisfied that the rulings made in the past were satisfactory and unbiased.

The order provided above may indicate that the vexatious litigant must not continue with any legal proceedings without leave of the Court, inferior court or tribunal that has been presided over by an Australian lawyer. The further legal proceeding is prohibited in both the courts and tribunals, and this individual is also not allowed to commence any other type of legal proceedings. Therefore, the action and request of a vexatious litigant is limited in all aspects. The individual will no longer have the equal right to file for court cases as a result of his or her vexatious litigation history. Before a court case can be allowed, the Court will first have to prove that the issue has merit and is worth the time. Otherwise, if the same topic is still brought up, then there will be no consideration given.

The above is the reason why a leave must not be given unless the Court, the inferior court, or the tribunal is satisfied that the proceedings will not abuse the legal process in any way. Therefore, unless an individual can prove that the legal proceeding is indeed worth it, then the leave will not be awarded as it would mean a repeat of all that has already been handled in previous court cases posed by the same individual. However, if the court had already made an order to declare a person to be a vexatious litigator, but then finds evidence to show that there is merit in the proceedings, then the order may be varied, set aside, or revoked to ensure that justice is served.

If an Attorney-General gets an order against an individual, then he or she must cause a copy of it to be published as so in the Government Gazette. This is to ensure that it becomes widely known and in record that this individual has been declared a vexatious litigator. As such the records in Courts, inferior courts and even tribunals will reflect the same. It will prevent confusion in the case where the same person moves from the Courts to inferior courts to try and seek the results they were hoping for.

Before the court can exercise the power of declaring one to be a vexatious litigator, a Judge of the Court must be present to listen to the issue. In the absence of the Judge, the court officials will not have the same power to give an order. When determining whether or not it is valid to give an order the court may consider instances of vexatious legal proceedings that took place before or after the implementation of the Supreme Court (Vexatious Litigants) Act 2003. This will be in an attempt to prove or disapprove the possibility that an individual is a vexatious litigator.

Yet another important reform which has been introduced relates to the Vexatious Proceedings Act 2014 (Vic). It is a three-tier system, compared to the single-tier system for handling vexatious litigants under s21 Supreme Court Act 1986 (Vic). Here, a new regime for management and prevention of the vexatious litigation in Victorian based courts has been introduced. This reform was introduced to help improve the effectiveness of the justice system by making sure that any litigation with no merit is disposed of immediately before the applicants can pursue it further and waste the courts time with even more unmeritorious cases. In the latter Act, the Supreme Court, County Court, Magistrates’ Court and VCAT are given the power to make litigation restraint orders. Here, the severity depends on the history of that specific individual in relation to vexatious behavior. The Children’s Court is also given the same power to make orders, but only if the litigation has been conducted under an intervention order. Basically, the tiered litigation approach promotes the opportunity of an early intervention and aims to ensure flexibility of Courts when it comes to adopting a reasonable response to the conduct of an individual.

Considering the above analysis of reforms that were introduced, it is evident that previously only the Attorney-General could apply for an order. On the other hand, only the Supreme Court, which is the highest court in the judicial hierarchy of Victoria, could make an order. This provision introduces a high test of threshold for making an order. This is because the Supreme Court must first be satisfied that the person indeed engaged in legal proceedings in a manner that is habitual, persistent, and with no reasonable grounds. The term habitual has been used in this context to imply that the proceedings do appear like they have been commenced as a matter of course. Persistent, on the other hand, means that determination and stubbornness was noted. Therefore, when these two are noted together, it shows that the vexatious legal proceedings are brought forward ‘more than frequently.’ Before the court can prove that proceedings were brought forward ‘with no reasonable ground’, it must first be satisfied that they were already identified as hopeless or having been instituted for the wrong purpose.

Instituted vexatious legal proceedings also limits the court to only some aspects of the individual’s litigation. This is because the term is limited to circumstances whereby an individual files an originating process, a counterclaim or appeals a verdict, or even applies to have the ruling cancelled. The Court is not allowed to consider the interlocutory applications that have been brought forward in Commonwealth or other inferior courts. Hence, since the consideration is on whether the proceeding is for an improper purpose or proved to be hopeless, it only matters to look at the vexatious nature of the proceeding and not the manner in which it was handled.

Therefore, the reform focuses on the nature and substance of the proceeding and not on re-examining the merits. The only critical evidence that should be used in such a case is already available in the court files which feature documents, judgments, orders and reasons.  Hence, the overall impression created by the proceedings in record, their character and the final results are what will matter.

However, the new reforms as stipulated under The Vexatious Proceedings Act 2014 (Vic) introduced more options. It focuses not only on limiting access to courts, but also on seeking an early solution to a dispute. Therefore, rather than simply prohibiting one from commencing proceedings, the new approach ensures that the individuals are encouraged to adopt a solution that works for them.

The reforms introduced are meant to manage vexatious behavior by keeping them at an all-time low. Since a vexatious proceeding is defined as one which features an abuse of the legal process; one that has been commenced to harass or annoy others, to delay another process, or any other wrongful reason; that which is commenced without reasonable ground; and that which has been conducted in a wrongful manner, it is clear that the reforms are meant to ensure that the mentioned behaviors do not occur. In Attorney General v Wentworth (1988), Justice Adrian Roden provides three tests which can be used to establish a vexatious proceeding. First, a vexatious proceedings are present if they are instituted for the sole purpose of annoying or embarrassing the other party. Second, it is present if it is evident that the proceeding has been brought forward for collateral purposes and not to have the court adjudicate on the issues. Lastly, it is also present if the proceedings are obviously untenable leading them to be utterly hopeless, even if the true motive of the litigant has not been proven.

In Victoria, the vexatious litigants are in a small number. However, they still take up too much time which would have been used by the Courts to handle other important factors. Also, the amount of resources consumed are not worth it. By spending time on these vexatious litigants, the court is forced to delay other proceedings and even reduce access to justice for other community members. The court is not the only affected party, the people being sued are also affected significantly both financially and emotionally. Fortunately, the reforms deal with these issues by ensuring that any issues are resolved before they can get out of hand. The three tier system categorizes the litigations according to severity. First, the Limited Litigation Restraint Order is only made to restrict the interlocutory proceedings. Second, the Extended Litigation Restraint Order focuses on restricting a litigation issue in accordance to a specific matter or individual. Lastly, the General Litigation Restraint Order restricts all litigation without giving room for leave.

It is necessary to consider whether or not these reforms are appropriate. Ever since the newly reformed Act was implemented, various individuals have been declared as vexatious litigants. For instance, in the case Attorney-General for the State of Victoria v Knight [2016], Julian Knight was given an order which restrained him from commencing any legal proceedings without attaining a leave of the Court. He was described as “persistent and undeterred litigant who will continue to litigate any cause regardless of its merits” (at paragraph [37]). Mr. Knight was found to have obsessional traits which encouraged him to pursue legal proceedings for no reasonable grounds.

The same individual had already been marked as a vexatious litigant as noted in Knight v Shuard [2015]. He had made an attempt to commence yet another legal proceeding but was found to have been given an order under the previous section 21 of Supreme Court Act 1986 (Vic). Here, he was given the opportunity to prove that there was reasonable ground for the proceeding. Unfortunately, he could not do so, which is why his application was denied. Considering the above scenario and similar cases in the current community, it is evident that Victoria is indeed in need of a vexatious litigation law. Hence, the reforms are appropriate as they ensure that no case with merit is left out, and also that no case without grounds is pursued. If this law was not introduced, the current justice system would be burdened by unending cases, majority of which would be unreasonable and for personal benefits of the owners.

According to the Civil Procedure Act 2010 (Vic), several obligations have been imposed on parties, legal practitioners, and even law practices when it comes to litigation conducts. There is the lofty overarching purpose of the Act to ensure that dispute resolution is just, efficient, timely and cost-effective. Another obligation is that of paramount duty which is owed to the courts while “overarching obligations” are imposed on the parties. Hence, all parties in any litigation process must certify that they have read and clearly understood the stipulated overarching obligations and paramount duty. This act relates to the vexatious litigation in the sense that it also lists how litigation conduct should be like. For instance, in relation to paramount duty, s. 16 of the Act notes that every individual has a paramount duty to the court to encourage justice administration in relation to the current civil proceedings they are involved in. This includes the interlocutory proceedings which have also been covered under the Vexatious Proceedings Act 2014 (Vic).

In relation to the overarching obligations, s. 29 of the Civil Procedure Act 2010 (Vic) provides various orders including; preventing the offending party further pursuing the proceeding, ordering the offending party to take steps to resolve the situation, or placing a costs order against the offender. The obligations here are to act with honesty, not act in vexatious ways, to only engage in necessary approaches that will facilitate resolution, to cooperate with other parties and the court itself, not to mislead others and the court and to use reasonable means to resolve the issues. Also, if the dispute cannot be completely resolved, reasonable endeavors are to be used to resolve the parts that can be fixed. There is also the obligation of ensuring that only reasonable costs are incurred in the process, to act decently to ensure no delays are experienced in reaching a solution, and to disclose the available to any documents which may help resolve the dispute promptly. These obligations are in line with what the Vexatious Proceedings Act 2014 (Vic) seeks to achieve. Hence, it also shows that the reforms are indeed appropriate as there are other laws and legislations which are also in support of the same approaches.

Yet another Act which supports the appropriateness of the Vexatious Proceedings Act 2014 (Vic) is the Civil Dispute Resolution Act 2011. Here, parties involved in a dispute are encouraged to pursue genuine steps in resolving their issues before any legal proceedings can be pursued in the Courts. This Act seeks to achieve specific objectives including; ensuring that individuals try to genuinely resolve their issues before having to appear before courts, to promote a move towards resolution that does not include litigation, and encouraging an easy access to justice by ensuring early solutions to problems. The vexatious litigation reforms seek to achieve this solution by ensuring that cases which can be resolved out of court are not permitted to commence. Therefore, since the parties will not have an access to the courts, they will be forced to consider other reasonable approaches of resolution.

When compared to the reforms of other regions in Australia, it is evident that these reforms have indeed been effective. It is evident that the NSW region has also introduced similar Acts as that of Victoria. There has been a dramatic reduction in the number of cases brought to courts. This is because majority of those which would have had no merit are prevented from moving on further in the justice system. This does mean that the Act is not challenged by a series of issues. For instance, the Vexatious proceeding Act (2008) (NSW) has been under a lot of criticism, just as is the case with the Vexatious Proceedings Act of Victoria. The previous has been criticized by Nikolas Kirby to possess four flaws when compared to the previous Supreme Court Act (1970) that it is replacing.

It is argued that the reform broadens the definition of vexatious litigant beyond what had been previously tested under s. 84 of the Supreme Court Act 1970 (NSW). Second, the scope of such proceedings has also been expanded such that trials are also prevented in tribunals and courts. Third, the standards for applying for an order has been lowered, leading a lot of applicants being awarded the same. Lastly, the courts have been made more flexible when it comes to constructing and declining the applied orders. These are the same issues which are also challenging the current reforms in Victoria. However, the reforms have still turned out to be quite effective considering the fact that many proceedings are being avoided and resources are being saved for future use. In addition, justice is still being served as the parties are being encouraged to consider other approaches for their dispute resolution.

As much as the reforms have played a major role in reducing the number of legal proceedings commenced before the courts, it is necessary to note the risks that have been introduced into the system. Just as is the case with the NSW system, the justice system in Victoria is now challenged by an increased risk of inequality and injustice. This is because any individual who brings forward a case will be treated the same as that one who brings a frivolous claim. It is an action that is meant to deter others who are simply hoping to waste the court’s time. However, there are innocent people who will have to suffer from injustice, lengthened court processes which are very expensive, and even inequality since some may not be able to afford. Thus, although the reform is effective in reducing court cases, it may be ineffective for the innocent individuals who will have to suffer. This is the same result that many have criticized in the NSW justice system.

Although there are court cases which may be frivolous, it is important to ensure that those with reasonable grounds are also not limited. The vexatious litigation, therefore, should encourage the legal representatives of these parties to pursue the court proceedings without fear. To achieved this, there should be an exception in the sense that the court will determine whether the case is frivolous or not. If reasonable ground is proven, then the high costs should be dropped to ensure that all citizens get to enjoy equality and justice.

The vexatious litigation Act should also include an order against hopeless points that are being raised every now and then during a court proceeding that was proven to have reasonable ground. This is an important consideration because it will ensure that legal representatives focus on presentation of facts that will determine the outcome of the court proceeding rather than waste its time by causing a delay. There are many instances where a proceeding is delayed by legal representatives so that they can get more time to look for evidence to support their cases. This issue should also be dealt with to prevent further time wastage.

Another consideration which should be made relates to the quality of affidavit evidence that has been filed. It should be made clear that fines will be applied in cases where the quality is poor and of little forensic value. This will encourage parties and their representatives to collect sufficient evidence before commencing the legal proceeding. As a result, all the possible evidence will be provided within the first trials, thereby saving time and importance judicial resources. At times, delays occur in making final rulings because parties appear before the courts unprepared. As such, the process moves slowly as the judge will have to keep adjourning the court to give both parties time to present reasonable evidence and witnesses who will determine the final result.

It is also important to introduce a reform which will act against the presence of a high number of counsel with a large volume of filed material that is disproportionate to the complexity of the dispute. If the dispute is minor, then simple evidence can be provided to help the jury reach a verdict. However, some legal representatives tend to take too much time in presenting their series of evidence despite this fact. As a result, too much time is spent analyzing the material and determining which side to rule for or against. As a matter of fact, confusion may also be experienced as some of the material may not be directly related to the dispute being handled.

To ensure that frivolous cases are treated differently from genuine cases, it is necessary to consider several approaches. First, it is evident that both the parties and their legal representatives have been introduced to these concepts. They need to know what to expect and how it will impact their future applications for court cases. Second, there is a need to promote other approaches for conflict resolution away from litigation. Once many have embraced that such an approach can be quite as effective and less costly, many will be comfortable pursuing it. Unfortunately, if the alternative approaches are not viewed as just by the parties, they will still push for court proceedings. Third, the legal representatives of the parties need to know that they have a duty to vigorously assess their client’s case before advising them to seek the court’s attention. If there is a higher risk of an adverse outcome, then the individual should be advised to consider a cheaper alternative for dispute resolution. However, if evidence is readily available, and all other aspects predict success, then the individual may be advised to pursue a court proceeding.

Conclusion

Considering the analysis conducted above, it is evident that the court proceeding is not the best alternative for all disputes. This is the reason why the vexatious litigation law reforms have been introduced to help improve how the courts manage the issues. As the economy is becoming more challenged, it is important to ensure that resources are reserved for cases that have reasonable ground. The reforms act as a filter by ensuring that the less serious cases are resolved out of court. Basically, justice will still be served for all individuals if the right measures are put in place to prevent inequality and injustice. Inequality may occur due to the fact that not all may be able to afford the expensive judicial proceeding charges. This may deter an individual with a strong case from seeking justice for a dispute that cannot be resolved out of court. Hence, there is a need to further improve the vexatious litigation laws of Victoria.

A Articles/ Books

Andrew P. Downie. Vexatious Proceedings Act 2014 (Vic): The three tiers of litigation restraint. (2014). https://www.commbarmatters.com.au/2014/12/09/vexatious-proceedings-act-2014-vic-the-three-tiers-of-litigation-restraint/

Anthony Moon, ‘The Vexatious Litigant Part 2’ Hearsay, The Journal of the Bar Association Queensland: 68 June 2008, Viewed 5/7/14 <https://www.hearsay.org.au/index.php?option=com_content&task=view&id=1295&Itemid=48>.

Attorney-General, Victoria, Attorney-General's Justice Statement: New directions for the Victorian justice system 2004-2014 (2004)

Bernard Cairns, Australian Civil Procedure, 6th edn, Lawbook Co, Australia, 2004, 88. 

Chief Justice Warren, Marilyn, 'State of the Victorian judicature' (Speech delivered at the Banco Court, Supreme Court of Victoria, 22 May 2007)

Denis Napthine, Premier of Victoria, ‘Coalition acts to limit vexatious litigation’  16 March 2014, viewed 3/7/14 https://www.premier.vic.gov.au/media-centre/media-releases/9393-coalition-government-acts-to-limit-vexatious-litigation.html.

Department of Justice, Victoria, Court Network (2008) https://www.justice.vic.gov.au/wps/wcm/connect/DOJ+Internet/Home/Courts/Going+to+Court/Pe rsonal+Support/JUSTICE+-+Court+Network+-+WEBLINK

Evidence to Law Reform Committee, Parliament of Victoria (‘Victorian Parliamentary Committee’), Melbourne, 6 August 2008, 2–3 (Simon Smith); Evidence to Victorian Parliamentary Committee, 13 August 2008, 2 (Mental Health Legal Centre), 2–3 (Federation of Community Legal Centres) at 3.

Grant Lester and Simon Smith, ‘Inventor, Entrepreneur, Rascal, Crank or Querulent?: Australia’s Vexatious Litigant Sanction 75 Years On’ (2006) 13 Psychiatry, Psychology and Law 1 at 17 in Above n8, 169. 

Her Majesty’s Court Service, Vexatious litigants (2008) https://www.hmcourtsservice.gov.uk/infoabout/vexatious_litigant/index.htm at 15 February 2008

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Letter from Chief Judge of the County Court to Executive Officer, Victorian Parliament Law Reform Committee, 11 September 2008

Nikolas Kirby ‘Law Reform Essay: When rights cause injustice: a critique of the Vexatious Proceedings Act 2008 (NSW)’ Sydney Law Review Vol 31:163.

Robins J. Can a vexatious order keep serial litigants out of court?. Lawyer [serial on the Internet]. (2003, Aug 11), [cited August 21, 2018]; 17(32): 7. Available from: Business Source Complete.

Supreme Court of New South Wales, Fact sheet on vexatious litigants (2008) https://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/vwPrint1/SCO_vexlitstable

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B Case Law

Attorney General v Wentworth (1988)

Attorney-General for the State of Victoria v Knight [2016] VSC 488 (30 August 2016)

 Knight v Shuard [2015] VSC 36

C Legislation

Civil Dispute Resolution Act 2011

Crimes (Family Violence) Act 1987

Family Violence Protection Bill 2008

Supreme Court A (General Civil Procedure) Rules 2015 VIC

Supreme Court Act 1970 (NSW) s 84

The Civil Procedure Act 2010 (Vic)

The Service and Execution of Process Act 1992 (Cth)

The Supreme Court (Vexatious Litigants) Act 2003

The Supreme Court Act 1986 (Vic), s. 21

The Vexatious proceeding Act (2008) (NSW)

The Vexatious Proceedings Act 2014 (Vic)