The Vexatious Litigant Part 2

In this paper Tony Moon looks at a number of issues which arise on a regular basis when opposing those litigants in person who stray into the area of vexatious litigation. 

 

Discretionary Factors

Once the Court is satisfied that the threshold question is answered in the positive the Act does not prescribe what discretionary factors may or may not be relevant when considering whether an order should be made under s.6(2). However, in other jurisdictions matters such as the following have been held relevant:

• the burden of the litigation commenced by the proposed vexatious litigant upon the applicant (Granich & Associates v YAP [2004] FCA 1567 at 10); and
• whether or not the proposed vexatious litigant is likely to engage in further or ongoing litigation (Slater v The Honourable Justice Higgins [2001] FCA 549 at 35).

If the Court exercises its discretion to make an order then whilst the Court is given wide power to make such orders as it considers appropriate by s.2(c), the specific orders which are provided for in the Act are:

s.6

“….

(2) The Court may make any or all of the following orders—

(a) an order staying all or part of any proceeding in Queensland already instituted by the person;

(b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in Queensland;

(c) any other order the Court considers appropriate in relation to the person. Again, “proceedings of a particular type” are defined inclusively in the Dictionary to include:

proceedings of a particular type includes—

(a) proceedings in relation to a particular matter; and

(b) proceedings against a particular person; and

(c) proceedings in a particular court or tribunal.”

So for example, an order could be made by the Court which prevents the vexatious litigant from instituting proceedings against a particular person as opposed to preventing the vexatious litigant from instituting proceedings in general.

The Act then goes on to provide that the Court, again being the Supreme Court, may vary or set aside a vexatious proceedings order of its own volition, on application of the person the subject of the vexatious proceedings order or one of those persons named in s.5(1).

“7 Order may be varied or set aside

(1) The Court may, by order, vary or set aside a vexatious proceedings order.

(2) The Court may make the order on its own initiative or on the application of—

(a) the person subject to the vexatious proceedings order; or

(b) a person mentioned in section 5(1).”

It would seem pretty unlikely that any person named in s.5(1)(d) or (e) would be likely to make any such application but the Act enables them to do so.

Section 8 interestingly provides that where a vexatious proceedings order is set aside by the Court and the Court is satisfied that within 5 years of setting it aside the person has instituted or conducted a vexatious proceeding in an Australian Court or Tribunal or has acted in concert with another person who has instituted or conducted a vexatious proceeding in an Australian Court or Tribunal then the Court may reinstate the vexatious proceeding order without any fresh application under s.6 being made.

Again, the reinstatement of an order can be made upon the application of any of the persons named in s.5(1) or of the Court’s own volition.

The person against whom the Vexatious Proceedings Order is to be reinstated must be given a right to be heard before any such reinstatement order can be made (subsection 4).

Section 9 requires that any relevant order such as a vexatious proceeding order or an order setting aside or reinstating such an order must be published by the Registrar of the Court in the Gazette within 14 days of the making of the order and entered into a publicly available register kept for the purpose of the Act in the register of the Court at Brisbane within 7 days.

The Registrar of the Court may also arrange for the details to be published in another way for example of publication on the Courts website, which has been done.

Part 3 of the Act goes on to deal with the particular consequences of making a Vexatious Proceedings Order and I do not intend to deal with that in great detail in this paper save and except to note that when an order has been made whether it be prohibiting the person from instituting any proceedings or proceedings of a particular type in Queensland, then the person may not institute such proceedings without leave of the Court.

Further, another person may not, acting in concert with the person against whom the Vexatious Proceedings Order was made, institute proceedings or proceedings of the particular type within Queensland without leave.

Any proceeding which is instituted in contravention of subsection 1 is permanently stayed.

Where such proceeding is commenced in contravention of subsection 10(1) then the Court or Tribunal in which it is commenced may make an order declaring the proceeding to be a proceeding to which sub-section 10 applies and any other order in relation to the proceeding including orders as to cost. One would assume, that an order which could be made in those circumstances would be an order dismissing or striking out the proceeding.

Section 11 of the Act deals with applications for leave to institute proceedings.

The application must be made to the Court and the applicant must file an affidavit together with the application which sets out those matters required by s.11(3):

“The applicant is not permitted to serve a copy of the application or the affidavit on any person unless an order is made by the Court that the applicant do so under s.13(1)(a) when the copy must be served in accordance with the order so made”.

No doubt the reason why the application is not to be served on any other person is to prevent the vexatious litigant from again involving parties in costly legal representation simply to respond to an application under s.11.

Indeed, s.11(5) provides that the Court may dismiss the application or grant the application.

There is also a prohibition on any appeal (again trying to break that litigation chain) from any decision disposing of the application.

Section 12 provides that a Court must dismiss an application for leave where the affidavit in support is not in substantial compliance with s.11(3) or the proceeding is a vexatious proceeding.

“12 Dismissing application for leave

(1) The Court must dismiss an application made under section 11 for leave to institute a proceeding if it considers—

(a) the affidavit does not substantially comply with section 11(3); or

(b) the proceeding is a vexatious proceeding.

(2) The application may be dismissed even if the applicant does not appear at the hearing of the application.”

Section 13 provides that before a Court can grant an application the Court must order that the applicant serve each relevant person with a copy of the application and affidavit and a notice to the persons that they are entitled to be heard on the application and give the applicant and each relevant person an opportunity to appear and be heard.

By s.13(a) the Court may grant leave to institute a particular proceeding or a proceeding of a particular type subject to conditions.

However the Court must be satisfied that the proceeding is not a vexatious proceeding before it grants leave.

The relevant persons upon whom documents are to be served and who are to be provide with a right of appearance and to be heard are set out in s.13(5).

I now turn to consider the other legislation and regulations which have bearing upon litigation or proceedings in Queensland.

Federal Court of Australia

The relevant provisions of the Federal Court of Australia are contained in the Federal Court Rules Order 21.

The Rules of the Federal Court are nowhere near as extensive or precise as the provisions of the Vexatious Proceedings Act 2005.

The Rules give the power to the Federal Court to make Vexatious Proceeding Orders. Reg 13.11 provides as follows:

“FEDERAL MAGISTRATES COURT RULES 2001 – REG 13.11

Vexatious litigants

(1) If the Court is satisfied that a person has instituted a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or any other Australian court (whether against the same person or against different persons), the Court may order:

(a) that any proceeding instituted by the person may not be continued without leave of the Court; and

(b) that the person may not institute a proceeding without leave of the Court.

(2) An order under subrule (1) may be made:

(a) on the application of a person against whom the person mentioned in subrule (1) has instituted or conducted vexatious proceedings ; or

(b) on the application of a person who has sufficient interest in the matter; or

(c) on the Court’s own motion; or

(d) on the application of the Attorney‑General of the Commonwealth or of a State or Territory; or

(e) on the application of the Registrar.

(3) If a person (a vexatious litigant) habitually and persistently and without reasonable grounds institutes vexatious proceedings in the Court against another person (the person aggrieved), the Court may, on application of the person aggrieved, order:

(a) that any proceeding instituted by the vexatious litigant against the person aggrieved may not be continued without the leave of the Court; and

(b) that the vexatious litigant may not institute any proceeding against the person aggrieved without leave of the Court.

(4) A person seeking an order under this rule must file an application.

(5) The Court may rescind or vary any order made under this rule.

(6) The Court must not give a person against whom an order is made under this rule leave to institute or continue any proceeding unless the Court is satisfied that the proceeding is not an abuse of process and that there is prima facie ground for the proceeding .

(7) Unless the Court orders otherwise, an application by a person who is subject to an order under subrule (1) or (3) may be determined by the Court without an oral hearing.

Note Under section 118 of the Family Law Act, if the Court is satisfied that a family law proceeding is frivolous or vexatious, the Court may, on the application of a party, order that the person who instituted the proceeding must not, without the leave of a court having jurisdiction under that Act, institute a proceeding under that Act of the kind or kinds specified in the order.”

So by Order 21 Rule 1, the proposed vexatious litigant need not necessarily habitually and persistently and without reasonable grounds, institute proceeding against any particular person.

For the purposes of Order 21, Rule 1 the application can be made by any of the persons named in subsection (2). However, for the purposes of Order 21 Rule 2, the application may only be made by the person aggrieved.

Further, under Order 21 Rule 1 the Court may order that the Vexatious Litigant may be precluded from continuing with any proceeding instituted by that person without the leave of the Court or from instituting a proceeding without the leave of the Court.

The prohibition in that case is not directed towards any particular proceeding either on foot or to be instituted against a particular person.

In Ramsey v Skyring 164 ALR 378 at [53]-[54] Sackville J said:

“[53] In order for O 21, r 1 to apply, it must be shown that the respondent:

• habitually and persistently
• and without any reasonable cause
• institutes
• a vexatious proceeding
• in the court.

[54] It will be seen that the rule is limited to the case where the respondent institutes a proceeding in the court. In this respect it is to be contrasted, for example, with s 3 of the Vexatious Litigants Act 1981 (Qld), which allows the Supreme Court to declare a person to be a vexatious litigant if satisfied that the person has ‘frequently and without reasonable ground instituted vexatious legal proceedings’. A provision in the latter form permits the court, when considering whether the relevant criteria have been satisfied, to take into account vexatious legal proceedings instituted in courts other than the one to which the application is made (although it seems that the provision is limited to proceedings instituted in Queensland courts: O’Shea v Cameron (CA(Qld), 5 March 1996, unreported). The terms of FCR O 21, r 1 can be satisfied, however, only by proceedings instituted in this court. Even so, in determining whether particular proceedings instituted in this court are in fact ‘vexatious’, it may be appropriate to take account of proceedings in other courts where, for example, they have authoritatively resolved the particular issue against the person instituting the proceedings: cf O’Shea v Cameron, at 6, per Mackenzie J, with whom Pincus JA agreed.”

“Habitually and persistently” have been discussed in a number of cases. In Granich & Associates v Yap [2004] FCA 1567 French said:

“[8] The present application is made under O 21 r 2. The legal principles governing applications to have litigants declared vexatious under that rule were discussed by Weinberg J in Horvath v Commonwealth Bank of Australia [1999] FCA 504 at [95] to [103]. See also Ramsay v Skyring (1999) 164 ALR 378 per Sackville J, Slater v Honourable Justice Higgins [2001] FCA 549 per Madgwick J and Commonwealth Bank of Australia v Heinrich [2003] FCA 540 per Mansfield J.

[9] On any view, in my opinion, the history of Mrs Yap’s litigation in this Court against Granich & Associates, answers the criteria set out in O 21 r 2. Her repeated litigation has been vexatious in the sense that she has sought to relitigate issues which have been previously determined. It has been habitual and persistent in the senses explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492 where his Honour said:

‘Habitually’ suggests that the institution of such proceedings occurs as a matter of course, or almost automatically, when the appropriate conditions (whatever they may be) exist; “persistently” suggests determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness.’

The quoted observation was adopted by Sackville J in Skyring and by Mansfield in Heinrich. The want of any reasonable ground for Mrs Yap’s persistent relitigation of issues has been amply demonstrated in the judgments that have been made in the course of those proceedings.

[10] These conditions being satisfied, the Court has a discretion whether to make the order sought.”

Sackville J in Ramsey v Skyring went on to discuss the application of a number of the requirements of the Federal Court Rules as follows:

“[56] The test of whether a person ‘without any reasonable ground institutes a vexatious proceeding’ is an objective one. In Jones v Skyring (at ALJR 813), Toohey J endorsed the observation of Ormerod LJ in Re Vernazza [1960] 1 QB 197 at 208, in relation to almost identical language contained in the Supreme Court of Judicature (Consolidation) Act 1925 (UK) s 51(1):

[The words] are referring to legal proceedings, and the question is not whether they have been instituted vexatiously but whether the legal proceedings are in fact vexatious.

As Toohey J observed, the question must be decided on the facts, not by reference to whether the person against whom the order is sought has acted in good faith. It is therefore immaterial that the respondent may believe in the justice of his or her argument and may not understand that the argument has been authoritatively rejected.

[57] In Jones v Skyring, Toohey J (at ALJR 813) suggested that there was some tautology in the language of the relevant rule, since ‘vexatious’ seemed to add little to the concept of proceedings instituted ‘frequently and without reasonable ground’. His Honour was of the view that persistent attempts by a litigant to argue questions authoritatively determined against him or her were within the High Court Rules O 63, r 6(1). In Attorney-General v Wentworth, Roden J (at 492-3) considered that the test was whether an objective assessment of the proceedings instituted by the relevant person showed that they were ‘utterly hopeless’. I do not think it necessary in this case to explore whether Toohey J intended to adopt a less stringent test than that adopted by Roden J or, indeed, whether it is necessary to add anything to the language used in O 21, r 1 itself.

[58] In determining whether a person “institutes” a proceeding for the purposes of O 21, r 1, it is necessary to have regard to the definition of “proceeding” in s 4 of the Federal Court Act, since the definition applies to the FCR: Acts Interpretation Act 1901 (Cth) s 46(1)(a). The Federal Court Act defines ‘proceeding’ to mean:

a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal.

[59] It has been accepted that the filing of an appeal involves the institution of a proceeding in the context of an application to declare a person a vexatious litigant: Vernazza (at 209-10), per Ormerod LJ; Jones v Skyring (at ALJR 813), per Toohey J. In the latter case, Toohey J (at ALJR 814) identified applications to a justice for leave to issue proceedings in consequence of a direction under the High Court Rules O 58, r 4(3) (the equivalent to FCR O 46, r 7A), notices of motion, notices of appeal and summonses as constituting the institution of legal proceedings. In Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478, Yeldham J expressed the view (at 488) that:

where a final decision has been given, any attempt, whether by way of appeal or application to set it aside, or to set aside proceedings taken to enforce such decision, which is in substance an attempt to re-litigate what has already been decided, is the institution of legal proceedings. It is to the substance of the matter that regard must be had and not to its form”.

In my view, having regard to the definition of “proceeding” to which I have referred, the observations in these cases apply to FCR O 21, r 1.

As with the Queensland legislation once the threshold test has been satisfied then the court has a discretion as to whether or not an order should be made and if so what the terms and extent of the order will be.

In Granich & Associates v Yap (supra) French J said at [10]:

“In my opinion, the abuses perpetrated by Mrs Yap in her proceedings in this Court and the burdens unfairly thrust on Granich & Associates require that such an order should be made. I propose to order accordingly.”

Order 21 Rule 4 provides that the Court may from time to time rescind or vary any Order made under Rule 1 or 2. The lack of particularity and process by which such a recession or variation is to take place is in mark contrast to the extensive provisions in the Queensland Legislation.

Again, Order 21 Rule 5 is quite concise and to the point when providing that the Court may give leave to a person to institute or continue a proceeding who would otherwise be prevented from doing so by the order made under Rule 1 or 2 in circumstances where the Court is satisfied that the proceeding is not an abuse of process and there are prima-facie grounds for the proceeding.

Order 21 Rule 5(2) seems to attempt to provide efficient and cost effective mechanism for considering applications by persons against whom orders under Rule 1 or 2 have been made by providing that any application may be determined without an oral hearing. In such circumstances, one would assume that a Court may well be disposed to dismiss any such application on the papers without the need to involve any other parties in circumstances where it was not satisfied that the proceeding was not an abuse of process or that there were no prima-facie grounds for the proceeding.

Whilst the Rules do not seem to specifically provide a procedure to apply when the Court is considering allowing such an application, one might well assume that in most cases the Court would normally require notice of the application be given to those parties who are likely to be affected by the granting of it and that such parties would be provided an opportunity to be heard on the application. One would assume that Rules of procedural fairness would require such a course to be adopted.

It is also interesting to note, that an order made under Rule 1 or 2 will only have the effect of preventing a person from instituting or continuing a proceeding in the Federal Court. The Order has no effect upon other Courts in the Federal structure such as the Federal Magistrates Court, the Family Court or the High Court.

Federal Magistrates Court

Again the provisions dealing with vexatious litigants insofar as they are applicable to the Federal Magistrates Court are included in the Federal Magistrates Court Rules 2001 in Regulation 13.11.

Whilst the Rule is set out in a somewhat different manner, it would appear that it pretty much replicates the Federal Court Rules.

Family Court of Australia

The provisions of the Family Law Act and Rules are again different to those in both the Federal Court and the Federal Magistrates Court.

Section 118 of the Family Law Act 1975 provides as follows:

“FAMILY LAW ACT 1975 – SECT 118

Frivolous or vexatious proceedings

(1) The court may, at any stage of proceedings under this Act , if it is satisfied that the proceedings are frivolous or vexatious:

(a) dismiss the proceedings ;

(b) make such order as to costs as the court considers just; and

(c) if the court considers appropriate, on the application of a party to the proceedings –order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act , institute proceedings under this Act of the kind or kinds specified in the order;

and an order made by a court under paragraph (c) has effect notwithstanding any other provision of this Act .

(2) A court may discharge or vary an order made by that court under paragraph (1)(c).”

This section gives the Family Court a wide discretion once the threshold has been established, that is that it is satisfied that the proceedings are frivolous or vexatious. It is not necessary to show that the person had acted in a manner which could be regarded as “habitual and persistent”. However, one would expect that such conduct would be of significant importance when the court considered relevant factors going to the exercise of the discretion.

The power of the Court seems to be quite a bit wider than that contained in the other provisions we have looked at above, in that it does not require any aspect of repetition or history of conduct at least in so far as the threshold test is concerned.

However, the Court is given further power to deal with such litigants by Rule 11.04 of the Family Law Rules 2004, which provides as follows:

FAMILY LAW RULES 2004 – RULE 11.04

Frivolous or vexatious case

(1) If the court is satisfied that a party has frequently started a case or appeal that is frivolous, vexatious or an abuse of process, it may:

(a) dismiss the party’s application; and

(b) order that the party may not, without the court’s permission, file or continue an application.

(2) The court may make an order under subrule (1):

(a) on its own initiative; or

(b) on the application of:

(i) a party;

(ii) for the Family Court of Australia — a Registry Manager; or

(iii) for the Family Court of a State — the Executive Officer.

(3) The court must not make an order under subrule (1) unless it has given the applicant a reasonable opportunity to be heard.

Note Under section 118 of the Act, the court may dismiss a case that is frivolous or vexatious and, on application, may prevent the person who started the case from starting a further case. Chapter 5 sets out the procedure for making an application under this rule.

Here the Court must be satisfied that the person has “frequently started a case or appeal that is frivolous, vexatious or an abuse of process”.

The difference between the words “frequently” and “habitual and persistent” should be noted. The threshold test will be easier to satisfy in the Family Court as opposed to the Federal Court and the Federal Magistrates Court.

Finally

It can be seen that the various jurisdiction have taken different approaches to the problem of vexatious litigants. The difference between them is not helpful. It is not difficult to envisage situations where a person maybe declared a vexatious litigant in one Court but not in another.

Such a situation is unsatisfactory for the parties who are the targets of the vexatious litigant and for the process of the Courts which have to deal with vexatious litigation.

I think that history shows that if a vexatious litigant is given a windows of opportunity then there is little doubt that that person will attempt to exploit the situation.

 

Anthony Moon