Civil Trials Bench Book — Procedure generally

Prior to 1 December 2008 the provision dealing with vexatious litigants in NSW was Supreme Court Act 1970 s 84. See Attorney-General v Wentworth (1988) 14 NSWLR 481 and see [2-6920] under the subtitle Vexatious proceedings.

Subsequently the relevant legislation has been the Vexatious Proceedings Act 2008 (the Act). That Act repeals s 84.

The Vexatious Proceedings Amendment (Statutory Review) Act 2018 amended the Act in a number of “minor” respects, to deal with issues that had arisen in its application. It did not alter the basic scheme of the Act.

For an examination of the relevant principles and the Act, see Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [16]–[19], [41]–[56].

The Act does not limit, affect or displace any inherent jurisdiction or any powers that a court or tribunal has apart from the Act to restrict vexatious proceedings: s 7. It is also clear that there is power to make orders appropriately adapted to the circumstances of the case; see for example Ghosh v Miller (No 2) [2018] NSWCA 212. Also see Choi v Secretary, Department of Communities and Justice [2022] NSWCA 170 at [222]; Hassan v Sydney Local Health District (No 5) [2021] NSWCA 197; Samootin v Shea [2013] NSWCA 312 and Proietti v Proietti [2023] NSWCA 132 at [30]–[33].

Teoh direction

A Court may make a Teoh direction to prevent an abuse of process by the applicant making multiple applications. A Teoh direction imposes a procedural requirement that must be satisfied before the applicant can burden other parties and the court with successive applications seeking the same or effectively the same relief as those that have already been finally disposed of. This does not preclude access to the court and is consistent with the statutory mandate for the conduct of proceedings with a view to the just, quick and cheap resolution of the real issues in dispute (s 56 of the Civil Procedure Act 2005): Teoh v Hunters Hill Council (No 8) at [44]–[56], [69]–[71]; Proietti v Proietti at [39].

Pursuant to s 8, the Supreme Court (or the Land and Environment Court) may make a vexatious proceedings order in relation to a person if it is satisfied that the person has frequently instituted or conducted vexatious proceedings in Australia (s 8(1)(a)) or acting in concert with a person subject to a relevant vexatious proceedings order has instituted or conducted vexatious proceedings in Australia: s 8(1)(b).

The court may have regard to proceedings conducted in any Australian court or tribunal (s 8(2)(a)) or orders made by such court or tribunal: s 8(2)(b).

Such orders must not be made in relation to a person without hearing the person or giving the person an opportunity of being heard: s 8(3).

The order may be made on the court’s own motion or on the application of persons identified in s 8(4). One of these persons is the person against or in relation to whom another person has instituted or conducted vexatious proceedings: s 8(4)(d).

A judicial officer, member or registrar of a court or tribunal may make a recommendation to the Attorney General for consideration of an application for a vexatious proceedings order in relation to a specified person s 8(6).

The order made by the Supreme Court may be an order staying all or part of any proceedings in NSW already instituted by the person (s 8(7)(a)), or an order prohibiting the person from instituting proceedings in NSW (s 8(7)(b)) or any other order that the court considers appropriate in relation to the person (s 8(7)(c)).

The Land and Environment Court may make similar orders but only in respect of proceedings in that court: s 8(8).

Orders may be varied or set aside (s 9) or reinstated (s 10).

For a consideration of that word, see Teoh v Hunters Hill Council (No 8) at [46]–[49] and the cases referred to in those passages. See also Quach v Health Care Complaints Commission [2017] NSWCA 267 at [113] where the meaning of “frequently” in s 8(1)(a) was considered.

Section 8 provides that the court “may” make a vexatious proceedings order and accordingly the relief is discretionary. For a consideration of that issue, see Teoh v Hunters Hill Council (No 8), above, at [44], [56], [68]–[71].

In the Act, “vexatious proceedings” includes proceedings that are an abuse of the process of a court or tribunal (s 6(a)), proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose (s 6(b)), proceedings instituted or pursued without reasonable ground (s 6(c)), and proceedings that are conducted to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive of the person who instituted the proceedings (s 6(d)). The comprehensive definition of what is included in the term “proceedings” is to be found in s 4 and includes any civil and criminal proceedings or proceedings before a tribunal.

Section 13 provides for the stay (s 13(2)) or dismissal (ss 13(3), (4), (5)) of proceedings instituted in contravention of such an order.

Sections 14 and 16 provide that a person who is subject to an order, or another person acting in concert with someone subject to an order, may seek leave to commence proceedings and makes provision for the appropriate procedure. As to the relationship between ss 9 and 14, see Quach v NSW Health Care Complaints Commission; Quach v NSW Civil and Administrative Tribunal [2018] NSWCA 175, obiter, at [22]–[26]. Section 16(3) provides that leave may be granted subject to conditions and s 16(4) that leave may only be granted if the court is satisfied that the proceedings are not vexatious proceedings (s 16(4)(a)) and that are one or more prima facie grounds for the proceedings (s 16(4)(b)).

Further, s 15 provides that the court must dismiss an application for leave if it considers that the required affidavit does not comply with s 14(3), that the proceedings are vexatious proceedings or there is no prima facie ground for the proceedings. The application may be dismissed even if the applicant does not appear at any hearing: s 15(2).

Despite any other Act or law, the applicant may not appeal from a decision disposing of an application for leave: s 14(6).

Section 17 provides for the making of orders limiting or prohibiting disclosure and for orders that proceedings be conducted in private.

Legislation