How did the old system work?Previously, the Attorney-General could apply to the Supreme Court under s 21 of the Supreme Court Act 1986 for a person to be declared a vexatious litigant. The Court had to be satisfied that the person had 'habitually, persistently and without any reasonable grounds' instituted vexatious proceedings.
Vexatious proceedings include those that are commenced to annoy or embarrass the person against whom they are brought, or are so obviously groundless as to be utterly hopeless.
Vexatious litigants sometimes sue the same people repeatedly and sometimes sue a series of different people. A vexatious litigant order can severely restrict a person’s access to the justice system. It may prevent that person from commencing or continuing any legal proceedings in any court or tribunal without leave of the courts.
Vexatious litigants can cause a significant strain on the legal system, wasting courts’ valuable time and causing genuine stress to affected parties. In 2008, the Victorian Law Reform Commission reported that the threshold for making orders against vexatious litigants was too high and resulted in the system being of limited utility and effect. In the past 85 years, only 21 people have been declared vexatious in Victoria. The cost of defending or responding to such litigation can be significant for those drawn into such litigation, including on the public purse.
What are the major changes under the new system?In addition to the Supreme Court, the Magistrates' Court, County Court, Children's Court and VCAT are now able to make vexatious litigant orders.
The Act also introduces a graduated system whereby courts can choose from one of three 'litigation restraint orders' (LROs) – a limited LRO, an extended LRO or a general LRO (the last of which is similar to the order currently available to the Supreme Court). These orders range in restrictiveness based upon the litigant's history and pattern of behaviour.
A person who is sued by a vexatious litigant, and other persons with a sufficient interest in the matter, may now apply to the court for an LRO to be made against a person. Only the highest-level order, a general LRO, restricts standing (to the Attorney-General) and jurisdiction (to the Supreme Court). As a result, it is likely that a far greater number of applications will be brought under the new Act.
Will it be easier for the courts to declare someone vexatious?Yes, both generally and with regards to the new graduated system of orders.
'Vexatious' proceedings and applications have been defined for the first time in Victoria and expand on common law principles. Such proceedings and applications now include those that are conducted or pursued to harass or annoy, cause delay or detriment, or for another wrongful purpose. Therefore, courts can now look beyond the merits of a litigant’s legal actions to their actual conduct.
The courts can now take into account all Australian legal proceedings and applications relevant to a vexatious litigant, not just those commenced in Victoria. Importantly, 'relevant proceedings' include interlocutory applications and appeals, two legal avenues commonly utilised by vexatious litigants.
The tests for the lowest and mid-level LROs are also much easier to satisfy than the previous vexatious litigant order available through the Supreme Court. All Courts and Tribunals are now empowered to make a limited LRO where a person has made at least two vexatious interlocutory applications in a given proceeding. This order can prevent a person from continuing or making further interlocutory applications in the proceeding without the leave of the court.
Alternatively, courts and tribunals may make an extended LRO where a person has frequently commenced or conducted vexatious proceedings against a specified person (or entity) or in relation to a specific matter. Such an order can prevent a vexatious litigant from continuing or commencing any proceedings against that person (or entity), or in relation to that matter, without the leave of the court.
Further information on vexatious litigantsMake sure to check out the Department of Justice's very useful legislative guide on the new regime. The ABC's Law Report program has also recently uploaded an interesting episode on vexatious litigants from both the legal and health perspectives.
If you are in the Victorian Government and would like more information about these changes, please contact:
Assistant Victorian Government Solicitor
t 8684 0410
Assistant Victorian Government Solicitor
t 8684 0416
t 8684 0462
Dr Adrian Hoel
t 8684 0244