A vexatious litigant is someone who persistently commences court action solely to harass another, or for an ulterior purpose. Litigation may be classified as vexatious where it is repetitive, burdensome and/or meritless.
The Supreme Court (the Court) on its own motion can make an order as to vexatious proceedings. Other authorised personnel can bring an application to the Court. For example, an application can be brought by the Attorney General. Alternatively, any person who has a ‘sufficient interest’ in the matter may likewise bring an application, if the Court grants leave.
Once a person is declared vexatious by the Court under the section 6 of the Vexatious Proceedings Act 2008 (NSW), they can be prohibited from commencing proceedings (or a certain type of proceedings, depending on the order made) without the court’s permission. The grounds for bringing an action under this section include:
- proceedings that are an abuse of the process of a court or tribunal, and
- proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and
- proceedings instituted or pursued without reasonable ground, 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.
An order can also be made against a person acting in concert with a vexatious litigant.
As a caveat, any orders relating to vexatious proceedings must not be made unless a prospective vexatious litigant has been given the opportunity to be heard in relation to such orders. This was emphasised last month in De Varda v Austin (No 3), where the Court of Appeal overturned vexatious proceedings orders made by the Supreme Court on the basis that an opportunity to be heard must strictly be afforded.
The Court is generally reluctant to declare someone vexatious, with less than 200 people having met the threshold in Australia throughout history.
