Responding to vexatious proceedings in Victoria

Transcription

1 Australian Centre for Justice Innovation Civil Justice Research Online Access to Justice 2015 Responding to vexatious proceedings in Victoria Follow this and additional works at: Part of the Civil Rights and Discrimination Commons, Courts Commons, Ethics and Professional Responsibility Commons, and the Family Law Commons Recommended Citation Crafti, Gabi, "Responding to vexatious proceedings in Victoria" (2015). Access to Justice. Paper This Article is brought to you for free and open access by Civil Justice Research Online. It has been accepted for inclusion in Access to Justice by an authorized administrator of Civil Justice Research Online. For more information, please contact

2 Responding to vexatious proceedings in Victoria 1, barrister 1. This paper examines a small but devastating aspect of self- representation vexatious litigation. Specifically, the paper looks at the subject from a defensive perspective; that is, it considers what a party can do when they are opposed to someone who they believe is waging a campaign of vexatious litigation against them. From late last year, the options opened up. 2. On 31 October, the Vexatious Proceedings Act 2014 (Vic) commenced. It is a lengthy and relatively complex Act setting out a new regime for the management of vexatious litigation in Victoria. The old regime 3. It will be recalled that formerly, section 21 of the Supreme Court Act 1986 (Vic) provided that the Supreme Court could declare a person to be a vexatious litigant if they habitually, persistently and without grounds instituted proceedings against the same or different persons. There were several problems with this provision. The main one was that only the Attorney- General could seek a declaration. This meant that litigants on the receiving end of vexatious litigation had marginal rights, and the courts had no own- motion powers. The second was that only the Supreme Court could make a declaration. Courts other than the Supreme Court had limited power to control vexatious litigants (such as through summary dismissal procedures and the like). The third problem was that section 21 set a very high threshold for the making of a declaration, which meant that it was used sparingly. Fourth, in deciding whether someone was vexatious, the Supreme Court was not permitted to consider the person s conduct in litigation outside of Victoria. Finally, there were inconsistent approaches to vexatious 1 Speech given at public lecture, Self- Representation: Justice Without Lawyers?, Monash University Law Chambers, hosted by the Australian Centre for Justice Innovation, 25 June

3 litigation under the Personal Safety Intervention Orders Act 2010 (Vic) and the Family Violence Protection Act 2008 (Vic). 2 The new regime 4. The Vexatious Proceedings Act was introduced to remedy these problems. From its title, it is apparent that the focus has moved off the litigant and onto the litigation. This is more than semantics or some kind of gratuitous tilt to kindness. It sets the frame for a new approach to vexatious litigation under which the whole judicial system is able to regulate and manage a range of offensive behaviours in a stepped fashion. 5. At the heart of the Act is the introduction of three types of litigation restraint order, which ascend in severity in accordance with circumstance. Limited litigation restraint orders 6. Starting with the limited litigation restraint order, the Supreme, County, Magistrates and Children s Courts and VCAT 3 can order that a person may not make or continue interlocutory applications, or specified types of interlocutory applications, in a particular proceeding without first obtaining leave of the court to do so. 4 The order lasts for the duration of that proceeding. 5 The order does not affect the person s right to make applications in other proceedings or to continue or commence other proceedings. 6 It follows that a limited litigation restraint order is used within a single proceeding. 7. Before making such an order, the court must be satisfied that the person in question has made two or more vexatious interlocutory applications in the 2 Parliament of Victoria Law Reform Committee, Inquiry into vexatious litigants, final report, December 2008, At certain points in this paper, I refer to the court and the courts. Where relevant, these expressions include VCAT. 4 Section 12 5 Section 15 6 Section 14 2

4 relevant proceeding. 7 Germane to that question is an assessment of whether the applications that have been brought have been vexatious. The new Act defines that a vexatious application includes an interlocutory application (a) that is an abuse of the process of a court or tribunal; (b) made to harass or annoy, to cause delay or detriment, or for another wrongful purpose; (c) made or pursued without reasonable ground; (d) pursued in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose. 8 This is arguably much broader than the old test under section 21, which required the Court to be satisfied that the vexatious litigant had habitually and persistently and without any reasonable ground instituted legal proceedings against another person. It remains to be seen, however, whether the courts in Victoria will regard the new Act as setting a lower threshold or whether it will remain the case that vexatious proceedings orders are made only in the most extreme cases. 8. In New South Wales, where the expression, vexatious proceedings, is defined in the same way as in the new Victorian Act 9, the Supreme Court has held that the inclusion of (d) pursued in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose relieved the court of having to be satisfied that the vexatious litigant intended the consequences of his or her actions. 10 Instead, the court was entitled to decide whether proceedings were vexatious as an objective question. 9. However, in March this year, Justice of Appeal Basten cast strong doubt on that position and said that the question of whether proceedings were vexatious was a subjective matter. 11 No doubt, when the time comes for a 7 Section 11(1) 8 Section 3 9 Vexatious Proceedings Act 2008 (NSW), section 6 10 Cameron v Qantas Airways [2014] NSWSC 560 at [40]- [46]; Attorney General (NSW) v Viavattene [2014] NSWSC 327at [155]; Attorney General (NSW) v Altaranesi [2013] NSWSC 63 at [17]- [20]; Pascoe v Liprini [2011] NSWSC 1484 at [10]; Attorney General (NSW) v Chan [2011] NSWSC 1315 at [33] 11 Viavattene v Attorney General (NSW) [2015] NSWCA 44 at [20]- [22] 3

5 Victorian court to make a decision about the new definition of vexatious under the Act, reference will be made to Justice Basten s obiter comments. 10. Returning to the matters to be decided in an application for a limited litigation restraint order, the threshold issue is whether two or more vexatious applications have been made in the proceeding. 12 Then, in deciding whether to make the limited litigation restraint order, the court can take into account any matter it considers relevant including any other proceeding in which the litigant is or has been involved anywhere in Australia, and any orders made by any Australian court or tribunal in respect of that person Most interestingly of all, the party who is on the receiving end of the vexatious applications can apply for the order, as can a person who has a sufficient interest in the matter. 14 This marks a dramatic shift away from the old regime. For the first time, a person or a corporation who is repeatedly pursued by a litigant without reasonable cause does need not wait for the Attorney- General to make an application to the Supreme Court. However, leave is required to apply for the order, and the court must not grant leave unless it is satisfied that there is merit in the application and that the granting of the application would not be an abuse of process. 15 This is a safeguard built in to the new regime to prevent parties using the Act for collateral purposes. The court can also make the order on its own motion, which is yet another development in the growing trend towards active judicial case management. 16 Extended litigation restraint orders 12. The next level order is called an extended litigation restraint order and it prevents a person from continuing or commencing any legal proceedings 12 Section 11(1) 13 Section 11(2) 14 Section 10(1)(b) and (c) 15 Section 10(2) and (3) 16 Section 11(4)(a) 4

6 against a specified person or entity, or in relation to a specified matter. A person who is subject to an order of this kind must seek leave before commencing proceedings. 17 The order lasts for the time specified in the order, which can be indefinite. 18 It follows that these types of orders can extend beyond the extant proceeding but are connected only to the identity of the victim or to a specific subject matter. 13. The lower courts and VCAT can make an extended litigation restraint order but such an order will only restrain proceedings in those jurisdictions. 19 So, for example, an order made by the County Court only restrains litigation in that court and does not affect the person s right to bring proceedings in another court or in VCAT. However, an extended litigation restraint order made by the Supreme Court can have general application and restrain litigation in all Victorian courts and tribunals Again, the party on the receiving end of the vexatious litigation can apply for the order as can a person who has a sufficient interest in the matter. 21 And, again, leave must be sought before applying for the order and the court must be satisfied that there is merit in the application and that the granting of the application would not be an abuse of process. 22 The court can also make an order on its own motion or on the application of the Attorney- General The test for the granting of the order is whether the person in question has frequently commenced or conducted vexatious proceedings against the specified person or entity or in relation to a specified matter. 24 Vexatious is 17 Sections Section Sections Section Section 16(1)(b) and (c) 22 Section 16(2) and (3) 23 Sections 16(1)(a) and 17(4)(a) 24 Section 17(1) 5

7 defined in the same as for the limited litigation restraint order. 25 The court can take into account any matter it considers relevant including the person s conduct in litigation outside of Victoria. 26 General litigation restraint orders 16. The highest level order is a general litigation restraint order, which is similar to the old section 21 in that: a. it can only be made by the Supreme Court; b. it has general application; 27 and c. it can be made on the application of the Attorney- General However, there are some major differences. The first is that the Court can make an order on its own motion. 29 The second is the Court must be satisfied that the person in question has persistently and without reasonable grounds commenced or conducted vexatious proceedings. 30 Again, vexatious proceedings is defined in the way described earlier. 31 As mentioned above, it remains to be seen whether there is any practical difference between the way the Court interprets the new definition of vexatious proceedings from the test that existed under section 21. The third difference is that the Court may consider any matter it considers relevant including the conduct of the person in proceedings outside of Victoria. 32 Other features 18. Some of the other features of the Act are that: 25 Section 3 26 Section 17(2) 27 Part 4 of the Act, sections Section 29(4) 29 Section 29(4) 30 Section 29(1) 31 Section 3 32 Section 29(2) 6

8 a. The courts and VCAT can make a range of orders against a person acting in concert with a person who is subject to an order made under the Act. 33 b. Where a person who is subject to a litigation restraint order seeks leave to bring a new proceeding, and leave has been refused, the courts can make an order that prevents that person from appealing that refusal. 34 c. The Act aligns the vexatious litigation provisions under the Personal Safety Intervention Orders Act and the Family Violence Protection Act with the new regime so that there is a single framework for dealing with this kind of conduct in Victoria. d. In terms of public access, details of orders made under the Act will be published in the Government Gazette. 35 The Act also allows the Attorney- General to publish the details of orders made under the Act in any other way he sees fit, including online. 36 At this stage, the Attorney- General has not exercised that right. Implementation and use of the Act 19. The introduction of the Vexatious Proceedings Bill in early 2014 evoked a degree of anxiety in the registries of the lower courts and VCAT. The concern was that the registries would be inundated with applications brought under the Act for orders. After all, for the first time, affected parties and non- parties could apply for orders (albeit with leave) to restrain the conduct of a litigant who was causing them grief. 20. From mid 2014, I had the privilege of chairing a working group on behalf of the Department of Justice (as it then was) which was constituted by the registries of the courts and VCAT and which set about preparing for the 33 Part 5 of the Act, sections Part 6 of the Act, sections Section 85(1) 36 Section 85(2) 7

9 coming of the new dawn on 31 October It was a bit like the Knight s Watch at Castle Black preparing for the coming of Winter and the onslaught of the White Walkers. Rule changes were made. 37 New forms were developed. 38 Practice notes were drafted. 39 A comprehensive guide to the Act was published. 40 And because the Act requires the courts and VCAT to notify the other jurisdictions when an order is made under the Act 41, a central electronic database was constructed and developed for their use. 21. And now, eight months on, virtual silence. The transitional provisions in the Act convert existing vexatious litigant declarations into general litigation restraint orders and so every time Julian Knight makes a litigious move, which is not infrequently, the provisions of the Act are invoked. 42 David Lindsay, another formerly declared vexatious litigant, recently applied under the Act for leave to bring a new proceeding. 43 Similarly, the Magistrates Court recently converted two orders previously made under the Personal Safety Intervention Orders Act and the Family Violence Protection Act against a particular individual into the first 37 Supreme Court (Vexatious Proceedings Amendments) Rules 2014 (SR No. 206 of 2014); County Court (Chapter II Vexatious Proceedings Amendment) Rules 2014 (SR No. 177 of 2014); Magistrates Court (Vexatious Proceedings Amendments) Rules 2014 (SR No. 203 of 2014); Victorian Civil and Administrative Tribunal (Vexatious Proceedings Amendment) Rules 2014 (SR No. 182 of 2014) 38 In the Supreme Court, there are new forms 83A, 83B, 83C, 83D, 83E, 83F, 83G, 83H, 83I, 83J and 83K. In the County Court, there are new forms 2-18A, 2-18C, 2-18D, 2-18E, 2-18F, 2-18G. VCAT has produced a range of forms that are searchable on the VCAT website. 39 At the time of writing this paper, the County Court was about to publish its practice note on the Act on its website. 40 Department of Justice & Regulation, Vexatious Proceedings Act 2014 Legislative Guide, 41 Sections 48, 60 and Knight v Minister for Corrections (No 2) [2015] VSC 213; Knight v Wise [2015] VSC 157; Knight v Money [2015] VSC 105; Knight v Minister for Corrections [2015] VSC 56; Knight v Shuard [2015] VSC 36; Knight v Wise [2014] VSC David James Lindsay Application under the Vexatious Proceedings Act 2014 (Vic) [2015] VSC 129 8

10 extended litigation restraint orders. 44 But otherwise, no applications have been made under the Act. Concluding remarks 22. It remains to be seen whether Winter is coming or whether the registries of the courts and VCAT will be spared. I suspect that it will take some time for practitioners and parties to understand the extent to which they can invite the court to control difficult and obsessive behaviour in litigation, and it will take the courts some time to feel comfortable making orders in the appropriate circumstances. 23. The biggest question, however, is whether the Vexatious Proceedings Act 2014 will have an effect on anything other that the most egregious conduct, and whether it will have the broader reach and application that the Parliament intended. 44 Orders made by the Magistrates Court at Melbourne in case no. F and in case no. F on 3 June