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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Vexatious Proceedings Bill 2008
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Definitions 2
4 Meaning of "proceedings" 3
5 Instituting proceedings 3
6 Meaning of "vexatious proceedings" 3
7 Inherent jurisdiction and powers of courts and tribunals
not limited 4
Part 2 Vexatious proceedings orders
8 Making of vexatious proceedings order 5
9 Order may be varied or set aside 6
10 Order may be reinstated 7
11 Notification and register of orders 7
b2008-056-94.d09
Vexatious Proceedings Bill 2008
Contents
Page
Part 3 Particular consequences of vexatious
proceedings orders
12 Appropriate authorised courts for granting leave 9
13 Contravention of vexatious proceedings order
prohibiting institution of proceedings 9
14 Application for leave to institute proceedings 10
15 Dismissing application for leave 11
16 Granting application for leave 11
Part 4 Miscellaneous
17 Orders limiting disclosure of matters in proceedings
under this Act 13
18 Regulations 13
19 Rules of court 13
20 Savings, transitional and other provisions 14
21 Amendment of other Acts 14
22 Review of Act 14
Schedule 1 Savings, transitional and other provisions 15
Schedule 2 Amendment of other Acts 17
Contents page 2
New South Wales
Vexatious Proceedings Bill 2008
No , 2008
A Bill for
An Act to make provision with respect to vexatious proceedings in the courts and
tribunals of the State.
Clause 1 Vexatious Proceedings Bill 2008
Part 1 Preliminary
The Legislature of New South Wales enacts: 1
Part 1 Preliminary 2
1 Name of Act 3
This Act is the Vexatious Proceedings Act 2008. 4
2 Commencement 5
This Act commences on a day to be appointed by proclamation. 6
3 Definitions 7
(1) In this Act: 8
appropriate authorised court--see section 12. 9
appropriate registrar for an authorised court means: 10
(a) in relation to the Supreme Court--the Prothonotary of the 11
Supreme Court, or 12
(b) in relation to the Land and Environment Court--the Registrar of 13
that Court, or 14
(c) in relation to the Industrial Court--the Industrial Registrar within 15
the meaning of the Industrial Relations Act 1996. 16
Australian court or tribunal means a court or tribunal of the 17
Commonwealth or of a State or Territory. 18
authorised court means any of the following courts: 19
(a) the Supreme Court, 20
(b) the Land and Environment Court, 21
(c) the Industrial Court. 22
decision includes determination. 23
institute, in relation to proceedings--see section 5. 24
order includes declaration and injunction. 25
proceedings--see section 4. 26
vexatious proceedings--see section 6. 27
vexatious proceedings order means an order made under section 8. 28
(2) A reference in this Act to a person acting in concert with another 29
person in instituting or conducting proceedings does not include a 30
reference to a person who is so acting as an Australian legal practitioner 31
or representative for the proceedings. 32
(3) Notes included in this Act do not form part of this Act. 33
Page 2
Vexatious Proceedings Bill 2008 Clause 4
Preliminary Part 1
4 Meaning of "proceedings" 1
In this Act, proceedings includes: 2
(a) any cause, matter, action, suit, proceedings, trial, complaint or 3
inquiry of any kind within the jurisdiction of any court or 4
tribunal, and 5
(b) any proceedings (including any interlocutory proceedings) taken 6
in connection with or incidental to proceedings pending before a 7
court or tribunal, and 8
(c) any calling into question of a decision, whether or not a final 9
decision, of a court or tribunal, and whether by appeal, challenge, 10
review or in another way. 11
5 Instituting proceedings 12
(1) In this Act, institute, in relation to proceedings, includes: 13
(a) for civil proceedings--the taking of a step or the making of an 14
application that may be necessary before proceedings can be 15
started against or in relation to a party, and 16
(b) for proceedings before a tribunal--the taking of a step or the 17
making of an application that may be necessary before 18
proceedings can be started before the tribunal, and 19
(c) for criminal proceedings--the making of a complaint or the 20
obtaining of a warrant for the arrest of an alleged offender, and 21
(d) for civil or criminal proceedings or proceedings before a 22
tribunal--the taking of a step or the making of an application that 23
may be necessary to start an appeal in relation to the proceedings 24
or to a decision made in the course of the proceedings. 25
(2) A reference in this Act to instituting proceedings includes a reference to 26
instituting: 27
(a) proceedings generally, and 28
(b) proceedings in relation to a particular matter, and 29
(c) proceedings against or in relation to a particular person, and 30
(d) proceedings in a particular court or tribunal. 31
6 Meaning of "vexatious proceedings" 32
In this Act, vexatious proceedings includes: 33
(a) proceedings that are an abuse of the process of a court or tribunal, 34
and 35
(b) proceedings instituted to harass or annoy, to cause delay or 36
detriment, or for another wrongful purpose, and 37
Page 3
Clause 7 Vexatious Proceedings Bill 2008
Part 1 Preliminary
(c) proceedings instituted or pursued without reasonable ground, and 1
(d) proceedings conducted in a way so as to harass or annoy, cause 2
delay or detriment, or achieve another wrongful purpose. 3
7 Inherent jurisdiction and powers of courts and tribunals not limited 4
This Act does not limit or otherwise affect any inherent jurisdiction or 5
any powers that a court or tribunal has apart from this Act to restrict 6
vexatious proceedings. 7
Page 4
Vexatious Proceedings Bill 2008 Clause 8
Vexatious proceedings orders Part 2
Part 2 Vexatious proceedings orders 1
8 Making of vexatious proceedings order 2
(1) When orders may be made 3
An authorised court may make an order under this section (a vexatious 4
proceedings order) in relation to a person if the court is satisfied that: 5
(a) the person has frequently instituted or conducted vexatious 6
proceedings in Australia, or 7
(b) the person, acting in concert with a person who is subject to a 8
vexatious proceedings order or who is referred to in paragraph 9
(a), has instituted or conducted vexatious proceedings in 10
Australia. 11
(2) For the purposes of subsection (1), an authorised court may have regard 12
to: 13
(a) proceedings instituted or conducted in any Australian court or 14
tribunal (including proceedings instituted or conducted before 15
the commencement of this section), and 16
(b) orders made by any Australian court or tribunal (including orders 17
made before the commencement of this section). 18
(3) An authorised court must not make a vexatious proceedings order in 19
relation to a person without hearing the person or giving the person an 20
opportunity of being heard. 21
(4) Orders may be made on court's own motion or on application 22
An authorised court may make a vexatious proceedings order of its own 23
motion or on the application of any of the following persons: 24
(a) the Attorney General, 25
(b) the Solicitor General, 26
(c) the appropriate registrar for the court, 27
(d) a person against or in relation to whom another person has 28
instituted or conducted vexatious proceedings, 29
(e) a person who, in the opinion of the court, has a sufficient interest 30
in the matter. 31
(5) An application for a vexatious proceedings order may be made by a 32
person referred to in subsection (4) (e) only with the leave of the 33
authorised court. 34
Page 5
Clause 9 Vexatious Proceedings Bill 2008
Part 2 Vexatious proceedings orders
(6) A judicial officer, member or registrar of a court or tribunal may make 1
a recommendation to the Attorney General that he or she consider 2
making an application for a vexatious proceedings order in relation to a 3
specified person. 4
(7) Orders that may be made by Supreme Court 5
The Supreme Court may make any one or more of the following 6
vexatious proceedings orders in relation to a person: 7
(a) an order staying all or part of any proceedings in New South 8
Wales already instituted by the person, 9
(b) an order prohibiting the person from instituting proceedings in 10
New South Wales, 11
(c) any other order that the Court considers appropriate in relation to 12
the person. 13
(8) Orders that may be made by Land and Environment Court 14
The Land and Environment Court may make any one or more of the 15
following vexatious proceedings orders in relation to a person: 16
(a) an order staying all or part of any proceedings in the Court 17
already instituted by the person, 18
(b) an order prohibiting the person from instituting proceedings in 19
the Court, 20
(c) any other order that the Court considers appropriate in relation to 21
proceedings by the person in the Court. 22
(9) Orders that may be made by Industrial Court 23
The Industrial Court may make any one or more of the following 24
vexatious proceedings orders in relation to a person: 25
(a) an order staying all or part of any proceedings in the Industrial 26
Relations Commission (whether in Court Session or otherwise), 27
(b) an order prohibiting the person from instituting proceedings in 28
the Industrial Relations Commission (whether in Court Session 29
or otherwise), 30
(c) any other order that the Court considers appropriate in relation to 31
proceedings by the person in the Industrial Relations 32
Commission (whether in Court Session or otherwise). 33
9 Order may be varied or set aside 34
(1) An authorised court may, by order, vary or set aside a vexatious 35
proceedings order that the court has made. 36
(2) An authorised court may make the order of its own motion or on the 37
application of: 38
Page 6
Vexatious Proceedings Bill 2008 Clause 10
Vexatious proceedings orders Part 2
(a) the person subject to the vexatious proceedings order, or 1
(b) a person referred to in section 8 (4). 2
(3) An application may be made by a person referred to in section 8 (4) (e) 3
only with the leave of the authorised court. 4
10 Order may be reinstated 5
(1) An authorised court may, by order, reinstate a vexatious proceedings 6
order prohibiting a person from instituting proceedings if: 7
(a) the court made the vexatious proceedings order, and 8
(b) the court is satisfied that, within 5 years of the vexatious 9
proceedings order being set aside, the person has: 10
(i) instituted or conducted vexatious proceedings in an 11
Australian court or tribunal, or 12
(ii) acted in concert with another person who has instituted or 13
conducted vexatious proceedings in an Australian court or 14
tribunal. 15
(2) An authorised court that reinstates a vexatious proceedings order may 16
make any other order that the court considers appropriate in relation to 17
the person, including, for example, an order varying the vexatious 18
proceedings order. 19
(3) An authorised court may make an order under this section of its own 20
motion or on the application of a person referred to in section 8 (4). 21
(4) An application may be made by a person referred to in section 8 (4) (e) 22
only with the leave of the authorised court. 23
(5) An authorised court must not reinstate a vexatious proceedings order in 24
relation to a person without hearing the person or giving the person an 25
opportunity of being heard. 26
11 Notification and register of orders 27
(1) This section applies in relation to each of the following orders (a 28
notifiable order): 29
(a) a vexatious proceedings order, 30
(b) an order varying or setting aside a vexatious proceedings order, 31
(c) an order reinstating a vexatious proceedings order, 32
(d) an order made under section 10 (2). 33
(2) The appropriate registrar for an authorised court that makes a notifiable 34
order must arrange for a copy of the order to be: 35
Page 7
Clause 11 Vexatious Proceedings Bill 2008
Part 2 Vexatious proceedings orders
(a) published in the Gazette within 14 days after the order is made, 1
and 2
(b) recorded in a publicly available register kept for the purposes of 3
this Act in the registry of the Supreme Court at Sydney within 4
7 days after the order is made. 5
(3) The appropriate registrar for an authorised court may also arrange for 6
details of a notifiable order that the court has made to be published in 7
another way (for example, on an internet website). 8
(4) The appropriate registrar for an authorised court may arrange for a copy 9
of a notifiable order that the court has made to be removed from the 10
register referred to in subsection (2) (b) if the registrar is satisfied that 11
the person in relation to whom the order was made has died. 12
(5) A failure to comply with a requirement of this section in relation to a 13
notifiable order does not affect the validity or enforceability of the 14
order. 15
Page 8
Vexatious Proceedings Bill 2008 Clause 12
Particular consequences of vexatious proceedings orders Part 3
Part 3 Particular consequences of vexatious 1
proceedings orders 2
12 Appropriate authorised courts for granting leave 3
For the purposes of this Part, an appropriate authorised court in 4
relation to the granting of leave to institute proceedings prohibited by a 5
vexatious proceedings order is: 6
(a) the authorised court that made the vexatious proceedings order, 7
and 8
(b) in the case of a vexatious proceedings order made by the Supreme 9
Court that operates to prohibit proceedings being instituted in the 10
Land and Environment Court--the Land and Environment Court, 11
and 12
(c) in the case of a vexatious proceedings order made by the Supreme 13
Court that operates to prohibit proceedings being instituted in the 14
Industrial Relations Commission (whether in Court Session or 15
otherwise)--the Industrial Court. 16
13 Contravention of vexatious proceedings order prohibiting institution of 17
proceedings 18
(1) If an authorised court makes a vexatious proceedings order prohibiting 19
a person from instituting proceedings: 20
(a) the person may not institute proceedings of the kind to which the 21
order relates without the leave of an appropriate authorised court 22
under section 16, and 23
(b) another person may not, acting in concert with the person, 24
institute proceedings without the leave of an appropriate 25
authorised court under section 16. 26
(2) If proceedings are instituted in contravention of subsection (1), the 27
proceedings are stayed until they are dismissed (or taken to be 28
dismissed) under this section. 29
(3) Any proceedings that are stayed by subsection (2) are taken to be 30
dismissed by the court or tribunal in which they were instituted on the 31
expiry of the period of 28 days after the proceedings were first 32
instituted, unless the proceedings are sooner dismissed under subsection 33
(4). 34
(4) Without limiting subsection (2) or (3), the authorised court, or the court 35
or tribunal in which the proceedings are instituted, may make: 36
(a) an order declaring that proceedings are proceedings to which 37
subsections (2) and (3) apply, and 38
Page 9
Clause 14 Vexatious Proceedings Bill 2008
Part 3 Particular consequences of vexatious proceedings orders
(b) an order dismissing the proceedings before the expiry of the 1
period referred to in subsection (3), and 2
(c) any other order in relation to the proceedings that it considers 3
appropriate, including an order for costs. 4
(5) An authorised court, or the court or tribunal in which the proceedings 5
are instituted, may make an order under subsection (4) of its own 6
motion or on the application of a person referred to in section 8 (4). 7
(6) An application may be made by a person referred to in section 8 (4) (e) 8
only with the leave of the authorised court or the court or tribunal in 9
which the proceedings are instituted. 10
14 Application for leave to institute proceedings 11
(1) This section applies to a person (the applicant) who is: 12
(a) subject to a vexatious proceedings order prohibiting the person 13
from instituting proceedings, or 14
(b) acting in concert with another person who is subject to an order 15
referred to in paragraph (a). 16
(2) The applicant may apply to an appropriate authorised court for leave to 17
institute proceedings that the order would otherwise prohibit the person 18
from instituting. 19
(3) The applicant must file an affidavit with the application that: 20
(a) lists all occasions on which the applicant has applied for leave: 21
(i) under this section, or 22
(ii) before the commencement of this section--as required by 23
an order under section 70 of the Land and Environment 24
Court Act 1979 or section 84 of the Supreme Court Act 25
1970, and 26
(b) lists all other proceedings the applicant has instituted in 27
Australia, including proceedings instituted before the 28
commencement of this section, and 29
(c) discloses all facts material to the application, whether supporting 30
or adverse to the application, that are known to the applicant. 31
(4) The applicant must not serve a copy of the application or affidavit on 32
any person unless: 33
(a) an order is made under section 16 (1) (a), and 34
(b) the copy is served in accordance with the order. 35
(5) An appropriate authorised court may dispose of the application by: 36
(a) dismissing the application under section 15, or 37
Page 10
Vexatious Proceedings Bill 2008 Clause 15
Particular consequences of vexatious proceedings orders Part 3
(b) granting the application under section 16. 1
(6) Despite any other Act or law, the applicant may not appeal from a 2
decision disposing of the application. 3
15 Dismissing application for leave 4
(1) An appropriate authorised court must dismiss an application made 5
under section 14 for leave to institute proceedings if it considers: 6
(a) the affidavit required by section 14 (3) does not substantially 7
comply with that subsection, or 8
(b) the proceedings are vexatious proceedings, or 9
(c) there is no prima facie ground for the proceedings. 10
(2) The application may be dismissed even if the applicant does not appear 11
at the hearing of the application. 12
16 Granting application for leave 13
(1) Before an appropriate authorised court grants an application made 14
under section 14 for leave to institute proceedings, it must: 15
(a) order that the applicant serve each relevant person with a copy of 16
the application and affidavit and a notice that the person is 17
entitled to appear and be heard on the application, and 18
(b) give the applicant and each relevant person an opportunity to be 19
heard at the hearing of the application. 20
(2) At the hearing of the application, the court may receive as evidence any 21
record of evidence given, or affidavit filed, in any proceedings in any 22
Australian court or tribunal in which the applicant is, or at any time was, 23
involved either as a party or as a person acting in concert with a party. 24
(3) The court may grant leave to institute proceedings subject to the 25
conditions that the court considers appropriate. 26
(4) However, the court may grant leave only if it is satisfied that: 27
(a) the proceedings are not vexatious proceedings, and 28
(b) there are one or more prima facie grounds for the proceedings. 29
(5) In this section: 30
relevant person, in relation to the applicant for leave to institute 31
proceedings, means each of the following persons: 32
(a) the person against or in relation to whom the applicant proposes 33
to institute the proceedings, 34
(b) the Attorney General, 35
(c) the Solicitor General, 36
Page 11
Clause 16 Vexatious Proceedings Bill 2008
Part 3 Particular consequences of vexatious proceedings orders
(d) the appropriate registrar for the authorised court that made the 1
vexatious proceedings order concerned if the registrar applied for 2
the order in relation to the applicant, 3
(e) any person referred to in section 8 (4) (d) or (e): 4
(i) who applied for a vexatious proceedings order in relation 5
to the applicant, and 6
(ii) who the appropriate authorised court dealing with the 7
application considers should be served, 8
(f) any person: 9
(i) who made an application in relation to the applicant under 10
section 70 of the Land and Environment Court Act 1979 or 11
section 84 of the Supreme Court Act 1970 before the 12
commencement of this section, and 13
(ii) who the appropriate authorised court dealing with the 14
application considers should be served. 15
Page 12
Vexatious Proceedings Bill 2008 Clause 17
Miscellaneous Part 4
Part 4 Miscellaneous 1
17 Orders limiting disclosure of matters in proceedings under this Act 2
(1) In proceedings under this Act, an authorised court may, if satisfied that 3
it is necessary to do so in order to protect the welfare of a person or for 4
any other reason, make any one or more of the following orders: 5
(a) an order that the proceedings be conducted wholly or partly in 6
private, 7
(b) an order prohibiting or restricting the publication or broadcasting 8
of any report of the proceedings, 9
(c) an order prohibiting or restricting the publication of evidence 10
given in the proceedings, whether in public or in private, or of 11
matters contained in documents lodged or filed with the court or 12
received in evidence before the court, 13
(d) an order prohibiting or restricting the disclosure to some or all of 14
the parties to the proceedings of evidence given before the court, 15
or of the contents of a document lodged or filed with the court or 16
received in evidence by the court, in relation to the proceedings. 17
(2) An authorised court may make an order under subsection (1) of its own 18
motion or on the application of a person whose welfare is at issue or 19
another person appearing in the proceedings. 20
(3) Nothing in this section limits or otherwise affects any other power that 21
an authorised court may have apart from this section in relation to the 22
disclosure of matters arising in or from proceedings before the court. 23
18 Regulations 24
The Governor may make regulations, not inconsistent with this Act, for 25
or with respect to any matter that by this Act is required or permitted to 26
be prescribed or that is necessary or convenient to be prescribed for 27
carrying out or giving effect to this Act. 28
19 Rules of court 29
(1) Rules of court may be made under relevant court procedure legislation 30
for or with respect to the practice and procedure to be followed in 31
respect of proceedings under this Act and any matters incidental to, or 32
relating to, such practice and procedure. 33
(2) This section does not limit the rule-making powers conferred by 34
relevant court procedure legislation or any other legislation. 35
Page 13
Clause 20 Vexatious Proceedings Bill 2008
Part 4 Miscellaneous
(3) In this section: 1
relevant court procedure legislation means any of the following: 2
(a) the Supreme Court Act 1970, 3
(b) the Land and Environment Court Act 1979, 4
(c) the Industrial Relations Act 1996. 5
20 Savings, transitional and other provisions 6
Schedule 1 has effect. 7
21 Amendment of other Acts 8
The Acts specified in Schedule 2 are amended as set out in that 9
Schedule. 10
22 Review of Act 11
(1) The Minister is to review this Act to determine whether the policy 12
objectives of the Act remain valid and whether the terms of the Act 13
remain appropriate for securing those objectives. 14
(2) The review is to be undertaken as soon as possible after the period of 15
5 years from the date of assent to this Act. 16
(3) A report on the outcome of the review is to be tabled in each House of 17
Parliament within 12 months after the end of the period of 5 years. 18
Page 14
Vexatious Proceedings Bill 2008
Savings, transitional and other provisions Schedule 1
Schedule 1 Savings, transitional and other 1
provisions 2
(Section 20) 3
Part 1 General 4
1 Regulations 5
(1) The regulations may contain provisions of a savings or transitional 6
nature consequent on the enactment of the following Acts: 7
this Act 8
(2) Any such provision may, if the regulations so provide, take effect from 9
the date of assent to the Act concerned or a later date. 10
(3) To the extent to which any such provision takes effect from a date that 11
is earlier than the date of its publication in the Gazette, the provision 12
does not operate so as: 13
(a) to affect, in a manner prejudicial to any person (other than the 14
State or an authority of the State), the rights of that person 15
existing before the date of its publication, or 16
(b) to impose liabilities on any person (other than the State or an 17
authority of the State) in respect of anything done or omitted to 18
be done before the date of its publication. 19
Part 2 Provisions consequent on enactment of this 20
Act 21
2 Definition 22
In this Part: 23
repealed vexatious litigant provision means any of the following: 24
(a) section 70 of the Land and Environment Court Act 1979, 25
(b) section 84 of the Supreme Court Act 1970. 26
3 Repealed vexatious litigant provisions continue to apply to pending 27
applications 28
(1) Subject to subclause (2), any application made under a repealed 29
vexatious litigant provision that is pending immediately before the 30
commencement of this Act may be continued and dealt with under the 31
provision as if the provision had not been repealed by this Act. 32
Page 15
Vexatious Proceedings Bill 2008
Schedule 1 Savings, transitional and other provisions
(2) If the Supreme Court or the Land and Environment Court makes an 1
order in relation to an application continued by subclause (1) that 2
operates to prevent a person from instituting or continuing proceedings 3
without the leave of the Supreme Court or the Land and Environment 4
Court, that order is, on and from the date it is made, taken to be (and to 5
have effect as if it were) a vexatious proceedings order made under this 6
Act by the Supreme Court or the Land and Environment Court (as the 7
case may be), and may be varied, set aside or reinstated accordingly. 8
4 Certain existing orders taken to be vexatious proceedings orders 9
(1) This clause applies to any order (an existing order) that: 10
(a) was made under a repealed vexatious litigant provision, and 11
(b) is in force immediately before the commencement of this Act, 12
and 13
(c) operates to prevent a person from instituting or continuing 14
proceedings without the leave of the Supreme Court or the Land 15
and Environment Court. 16
(2) An existing order is taken to be (and to have effect as if it were) a 17
vexatious proceedings order made under this Act by the Supreme Court 18
or the Land and Environment Court (as the case may be), and may be 19
varied, set aside or reinstated accordingly. 20
Page 16
Vexatious Proceedings Bill 2008
Amendment of other Acts Schedule 2
Schedule 2 Amendment of other Acts 1
(Section 21) 2
2.1 Land and Environment Court Act 1979 No 204 3
Section 70 Vexatious litigant 4
Omit the section. 5
2.2 Supreme Court Act 1970 No 52 6
[1] Section 84 Vexatious litigant 7
Omit the section. 8
[2] Section 101 Appeal in proceedings before the Court 9
Omit section 101 (2) (g). 10
Page 17
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