VersionNo. 003

Vexatious Proceedings Act 2014

No. 42 of 2014

Version incorporating amendments as at
31 October 2015

TABLE OF PROVISIONS

SectionPage

1

SectionPage

Part 1—Preliminary

1Purpose

2Commencement

3Definitions

4Meaning of acting in concert

5Meaning of interlocutory application

6Application of Act

7Act prevails to extent of inconsistency

8Act does not limit certain other jurisdictions

9Constitution of VCAT

Part 2—Limited litigation restraint orders

10Applying for limited litigation restraint order

11Court or VCAT may make limited litigation restraint order

12Content of limited litigation restraint order

13Effect of limited litigation restraint order

14Limited litigation restraint order does not affect certain applications or proceedings

15Duration of limited litigation restraint order

Part 3—Extended litigation restraint orders

16Application for extended litigation restraint order

17Court or VCAT may make extended litigation restraint order

18Application for extended litigation restraint order—intervention order legislation

19Magistrates' Court or Children's Court may make extended litigation restraint order—intervention order legislation

20Content of extended litigation restraint order made by Supreme Court

21Content of extended litigation restraint order made by County Court

22Content of extended litigation restraint order made by Magistrates' Court

23Content of extended litigation restraint order made by Children's Court

24Content of extended litigation restraint order made by VCAT

25Effect of extended litigation restraint order on proceeding

26Extended litigation restraint order does not affect certain proceedings

27Duration of extended litigation restraint order

Part 4—General litigation restraint orders

28Application for general litigation restraint order

29Supreme Court may make general litigation restraint order

30General litigation restraint order

31Supreme Court may make extended litigation restraint order instead of general litigation restraint order

32Effect of general litigation restraint order on proceeding

33Duration of general litigation restraint order

Part 5—Acting in concert orders

34Application for acting in concert order

35Court or VCAT may make acting in concert order

36Magistrates' Court or Children's Court may make acting in concert order—intervention order legislation

Part 6—Appeal restriction orders

37Supreme Court may make an appeal restriction order

38Court or VCAT may make appeal restriction order

39Magistrates' Court or Children's Court may make appeal restriction order—intervention order legislation

40Effect of appeal restriction order

41Appeal restriction order does not affect other applications or proceedings

42Duration of appeal restriction order

Part 7—General matters relating to orders

Division 1—Applications for orders

43Attorney-General may request documents from Victorian court or tribunal

44Notice of application for order—intervention order legislation

Division 2—Making of orders

45Certain persons must be given opportunity to be heard

46Statement of reasons for order—intervention order legislation

Division 3—Copies of orders

47Copy of order to be given to Attorney-General

48Copy of order to be given to other Victorian courts and tribunals

49Copy of order—intervention order legislation

Part 8—Applications for leave to proceed

Division 1—Application for leave to proceed under limited litigation restraint order

50Application for leave to make or continue interlocutory application

51Court or VCAT may grant leave to make or continue interlocutory application

Division 2—Application for leave to proceed under extended litigation restraint order

52Application for leave to commence or continue proceeding

53Court or VCAT may grant leave to commence or continue proceeding

Division 3—Application for leave to proceed under general litigation restraint order

54Application for leave to commence or continue proceeding

55Victorian court or tribunal may grant leave to commence or continue proceeding

Division 4—General matters relating to applications for leave to proceed

56Person must disclose certain matters

57Refusal to accept application for leave to proceed

58Victorian court or tribunal may dismiss application for leave to proceed

59No notice of application to be given without direction or order

60Direction as to giving notice of application

61Direction as to giving notice of application—intervention order legislation

62Victorian court or tribunal may give persons opportunity to be heard

63Determining application for leave to proceed

64Leave may be subject to conditions

Part 9—Variation or revocation of litigation restraint order

Division 1—Court or VCAT may vary or revoke order

65Application for variation or revocation of litigation restraint order

66No notice of application to be given without direction or order

67Direction as to notice of application

68Direction as to notice of application—intervention order legislation

69Court or VCAT may vary or revoke litigation restraint order

70Court or VCAT may give persons opportunity to be heard

71Determining application for variation or revocation

72Notice of order to be given to Attorney-General

73Notice of order to be given to Victorian courts and tribunals

Division 2—Variation or revocation application prevention orders

74Court or VCAT may make variation or revocation application prevention order

75Effect of variation or revocation application prevention order

76Order does not affect other applications or proceedings

77Duration of order

Part 10—Appeals

78Application of this Part

79Appeal of decisions to which this Part applies

80No notice of application to be given without direction or order

81Direction as to giving notice of application

82Direction as to giving notice of application—intervention order legislation

83Court may give persons opportunity to be heard

84Determining application for leave to appeal

Part 11—Miscellaneous provisions

85Attorney-General to publish copy of order

86Publication of names—intervention order legislation

87Annual reports

88Rules of Court

89Regulations

Part 12—Transitional provisions

90Application of Interpretation of Legislation Act 1984

91Supreme Court Act 1986—orders declaring person to be vexatious litigant

92Supreme Court Act 1986—applications not heard or determined before repeal of section 21

93Supreme Court Act 1986—applications not determined before repeal of section 21

94Family Violence Protection Act 2008—orders declaring person to be vexatious litigant

95Family Violence Protection Act 2008—applications not heard and determined before repeal of Part 11

96Family Violence Protection Act 2008—applications not determined before repeal of Part 11

97Personal Safety Intervention Orders Act 2010—orders declaring person to be vexatious litigant

98Personal Safety Intervention Orders Act 2010—Applications not heard and determined before repeal of Part 10

99Personal Safety Intervention Orders Act 2010—applications not determined before repeal of Part 10

100Regulations dealing with transitional matters

101Power to resolve transitional difficulties in proceeding

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Endnotes

1General information

2Table of Amendments

3Amendments Not in Operation

4Explanatory details

1

VersionNo. 003

Vexatious Proceedings Act 2014

No. 42 of 2014

Version incorporating amendments as at
31 October 2015

1

Part 1—Preliminary

Vexatious Proceedings Act 2014
No. 42 of 2014

The Parliament of Victoria enacts:

Part 1—Preliminary

1Purpose

The main purpose of this Act is to reform and consolidate the law relating to vexatious proceedings in courts and tribunals in a way that—

(a)balances individual rights of access to the courts with the public interest in an efficient and effective justice system; and

(b)promotes uniformity with other jurisdictions in the management and prevention of vexatious behaviour.

2Commencement

(1)Subject to subsection(2), this Act comes into operation on a day or days to be proclaimed.

(2) If a provision of this Act does not come into operation before 31October2014, it comes into operation on that day.

3Definitions

In this Act—

acting in concerthas the meaning given by section4;

acting in concert order means an order made—

(a)by the Supreme Court, the County Court, the Magistrates' Court or VCAT under section35; or

(b)in relation to intervention order legislation, by the Magistrates' Court or the Children's Court under section36;

appeal restriction ordermeans an order made—

(a)by the Supreme Court under section37; or

(b)by the County Court, the Magistrates' Court or VCAT under section38; or

(c) in relation to intervention order legislation, by the Magistrates' Court or the Children's Court under section39;

application for leave to proceed means—

(a)an application under section50 by a person subject to a limited litigation restraint order for leave to make or continue an interlocutory application in a proceeding; or

(b) an application under section52 by a person subject to an extended litigation restraint order for leave to commence or continue a proceeding; or

(c) an application under section54 by a person subject to a general litigation restraint order for leave to commence or continue a proceeding;

Australian court or tribunal means—

(a)a Victorian court or tribunal; or

(b)a court or tribunal of the Commonwealth or of another State or a Territory;

child means a person who is under the age of 18years;

Court means the following courts—

(a)the Supreme Court;

(b)the County Court;

(c)the Magistrates' Court;

(d)in relation to an order under this Act that relates to intervention order legislation, the Children's Court;

extended litigation restraint ordermeans an order made—

(a)by the Supreme Court, the County Court, the Magistrates' Court or VCAT under section17; or

(b)in relation to intervention order legislation, by the Magistrates' Court or the Children's Court under section19;

general litigation restraint ordermeans an order made under section29;

interlocutory application has the meaning given by section5;

intervention order legislation means—

(a)the Crimes (Family Violence) Act 1987 as in force immediately before its repeal; and

(b)the Family Violence Protection Act 2008; and

(c)the Personal Safety Intervention Orders Act 2010; and

(d)the Stalking Intervention Orders Act 2008 as in force immediately before its repeal;

legal practitioner means an Australian legal practitioner within the meaning of the Legal Profession Act 2004;

limited litigation restraint ordermeans an order made under section11;

litigation restraint order means any of the following orders—

(a)an extended litigation restraint order;

(b)a general litigation restraint order;

(c)a limited litigation restraint order;

parent, of a child, includes—

(a)a person who has responsibility for the long-term welfare of the child and has, in relation to the child, all the parental powers, rights and duties that are vested by law or custom in the guardian of a child; and

(b)a person with whom the child normally or regularly resides;

proceeding means any matter in an Australian court or tribunal, whether civil or criminal, including—

(a)any cause, matter, action, suit, proceeding, trial, complaint or inquiry of any kind within the jurisdiction of an Australian court or tribunal;

(b)any proceeding (including any interlocutory application) taken in connection with or incidental to a proceeding before an Australian court or tribunal;

(c)any appeal, review or other challenge, including an application for judicial review or an application for leave to appeal.

variation or revocation application prevention order means an order made—

(a)by the Supreme Court, the County Court, the Magistrates' Court or VCAT under section74(1); or

(b)in relation to intervention order legislation, by the Magistrates' Court or the Children's Court under section74(2);

vexatious applicationincludes the following—

(a)an interlocutory application that is an abuse of the process of a court or tribunal;

(b)an interlocutory application made to harass or annoy, to cause delay or detriment, or for another wrongful purpose;

(c)an interlocutory application made or pursued without reasonable ground;

(d)an interlocutory application pursued in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose;

vexatious proceeding includes the following—

(a)a proceeding that is an abuse of the process of a court or tribunal;

(b)a proceeding commenced to harass or annoy, to cause delay or detriment, or for another wrongful purpose;

(c)a proceeding commenced or pursued without reasonable grounds;

(d)a proceeding conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose;

vexatious proceeding order means any of the following orders made by an Australian court or tribunal—

(a)an order that a proceeding be stayed or dismissed for being vexatious;

(b)an order that a person commencing or conducting a proceeding is a vexatious litigant;

(c)any other order that requires the person subject to the order to seek leave of an Australian court or tribunal before commencing or continuing a proceeding;

Victorian court or tribunal means any of the following—

(a)the Supreme Court;

(b)the County Court;

(c)the Magistrates' Court;

(d)the Children's Court;

(e)VCAT;

(f)VOCAT;

VOCAT means the Victims of Crime Assistance Tribunal established by the Victims of Crime Assistance Act 1996.

4Meaning of acting in concert

(1)Subject to subsection(2), in this Act, a person is acting in concert with another person if the first mentioned person is—

(a)acting on behalf of the other person; or

(b)acting for the predominant benefit of the other person; or

(c)acting on the instructions of the other person; or

(d)acting in collusion with the other person.

(2)A person who makes an interlocutory application or commences and conducts a proceeding on behalf of a person is not acting in concert with that person if the first mentioned person is—

(a)a legal practitioner acting for the person; or

(b)a litigation guardian of the person; or

(c) a professional advocate within the meaning of section62(8) of the Victorian Civil and Administrative Tribunal Act 1998; or

(d)any other person authorised or required by law to act on behalf of the person.

Example

Persons who may be authorised or required by law to act on behalf of a person include insurers conducting proceedings under a right of subrogation, administrators, guardians, liquidators, receivers and any other person who has a legal right or obligation to represent the person.

5Meaning of interlocutory application

(1)In this Act, an interlocutory application means any process by which an interlocutory proceeding is commenced in an Australian court or tribunal, including a subpoena.

(2)Despite subsection(1), the following are not interlocutory applications for the purposes of this Act—

(a)an application under the Family Violence Protection Act 2008 in respect of which a court makes—

(i)an interim order under section 53or101of that Act; or

(ii) an interim extension order under section107 of that Act; or

(b)an application under the Personal Safety Intervention Orders Act 2010 in respect of which a court makes—

(i)an interim order under section 35or 81of that Act; or

(ii) an interim extension order under section84 of that Act.

6Application of Act

(1)This Act applies to all civil proceedings and all criminal proceedings in a Victorian court or tribunal.

(2)The powers conferred on a Victorian court or tribunal by this Act are additional to the powers of a Victorian court or tribunal to control its own proceedings.

7Act prevails to extent of inconsistency

Subject to section8, to the extent of any inconsistency, this Act prevails over—

(a)any statutory jurisdiction of a Victorian court or tribunal; or

(b)any powers of a Victorian court or tribunal arising or derived from the common law; or

(c)any powers of a Victorian court or tribunal arising or derived under any other Act (including any Commonwealth Act), rule of court, practice note or practice direction.

8Act does not limit certain other jurisdictions

Nothing in this Act limits—

(a)in the case of the Supreme Court, the Court's inherent jurisdiction or implied jurisdiction; or

(b)in the case of a Court other than the Supreme Court, the Court's implied jurisdiction.

9Constitution of VCAT

When exercising a power under this Act, VCAT must be constituted by a member who is an Australian lawyer within the meaning of the Legal Profession Act 2004.

Part 2—Limited litigation restraint orders

10Applying for limited litigation restraint order

(1)Subject to subsection(2), any of the following persons may apply to a Court or VCAT for a limited litigation restraint order against a person who is a party to a proceeding in that Court or in VCAT (as the case requires)—

(a)the Attorney-General;

(b)if the person has made a vexatious application against another person, that other person;

(c)a person who has a sufficient interest in the matter.

Example

A person who is a party to a proceeding and who is not the person against whom a vexatious application has been made may be a person who has a sufficient interest in the matter.

(2) A person referred to in subsection(1)(b) or (c) must not apply for a limited litigation restraint order against a person who is a party to a proceeding—

(a)without leave of the Court in which the proceeding is being heard; or

(b)if the proceeding is being heard in VCAT, without leave of VCAT.

(3) A Court or VCAT may grant leave to apply for a limited litigation restraint order if the Court or VCAT is satisfied that—

(a)there is merit in the application; and

(b)the making of the application would not be an abuse of process.

11Court or VCAT may make limited litigation restraint order

(1)A Court or VCATmay make a limited litigation restraint order against a person who is a party to a proceeding if the Court or VCAT is satisfied that—

(a)the person has made 2or more interlocutory applications in the proceeding; and

(b)the interlocutory applications are vexatious applications.

(2)When making an order under subsection(1), a Court or VCAT may in its discretion take into account any matter it considers relevant, including but not limited to the following—

(a)any interlocutory application made by the person, or an entity controlled by the person, in any Australian court or tribunal;

(b)the existence of any order made by an Australian court or tribunal against the person or an entity controlled by the person, including—

(i)a litigation restraint order; or

(ii)an acting in concert order; or

(iii) a vexatious proceeding order; or

(iv) an order striking out a vexatious application;

(c)any other matter relating to the way in which the person conducts or has conducted litigation.

(3) A Court or VCAT may take into account a matter referred to in subsection(2) that relates to an interlocutory application made or a proceeding commenced or conducted before, on or after the commencement of this section.

(4) A Court or VCAT may make a limited litigation restraint order—

(a)on its own motion; or

(b)on an application under section10.

12Content of limited litigation restraint order

(1) A limited litigation restraint order may direct that the person must not, without leave of the Court or VCAT (as the case requires), do either or both of the following—

(a)make an interlocutory application or specified type of interlocutory application in the proceeding;

(b)continue an interlocutory application or specified type of interlocutory application in the proceeding.

(2) A limited litigation restraint order may include any other direction or order in relation to the proceeding that the Court or VCAT considers appropriate.

(3) Without limiting subsection(2), the Court or VCAT may direct that the person who is subject to the limited litigation restraint order may makeor continuea specified type of interlocutory application in the proceeding.

13Effect of limited litigation restraint order

On the making of a limited litigation restraint order, subject to the terms of the order—

(a)an interlocutory application in the proceeding to which the order relates is stayed; and

(b)an interlocutory application that is made in contravention of the order is of no effect.

14Limited litigation restraint order does not affect certain applications or proceedings

A limited litigation restraint order made against a person in respect of a proceeding does not affect the person's right—

(a)to make or continue an interlocutory application in another proceeding in a Victorian court or tribunal; or

(b)to commence or continue another proceeding in a Victorian court or tribunal.

15Duration of limited litigation restraint order

Unless a Court or VCAT otherwise orders, a limited litigation restraint order remains in force for the duration of the proceeding to which the order relates.

Part 3—Extended litigation restraint orders

16Application for extended litigation restraint order

(1)Subject to subsection(2), any of the following persons may apply to a Court or VCAT for an extended litigation restraint order against a person—