Alister Henskens portrait
Alister Henskens portrait

Vexatious Proceedings Amendment (Statutory Review) Bill 2017


Mr ALISTER HENSKENS ( Ku-ring-gai ) ( 10:38 :22 ): It is fundamental to a free society that its fountains of justice are free-flowing with transparently clear waters. However, at least in the area of civil proceedings, vexatious litigants can foul the waters of any independent and credible system of justice. A hallmark of our system of justice, which is renowned throughout the world for its fairness, is that all people great and small who come before it are treated equally as well as fairly. But that system of equal access to justice can be abused. As the French philosopher Jean-Jacques Rousseau put it, "All people are born free, but everywhere they are in chains."

In the context of this bill that means the abuse of the right to free and equal access to the court system. Vexatious proceedings are inimical to the right of access to justice and can lead to the oppression of others. There is a delicate balance within the court system to maintain free access to court processes while, in exceptional and limited cases, restricting the access of some individuals based upon a history of abuse of process. In 2008 Parliament codified the manner in which courts were to resolve the issue of restricting access to those who would abuse the privilege as vexatious litigants. The bill before this House will refine the way in which that 2008 Act defines the balance between access and restricting access to the legal system for some individuals.

The State is fortunate to have an Attorney General who was a successful barrister and has attained the level of senior counsel. He has the knowledge to balance both the privilege and obligation in the area of vexatious litigants. In 2017 the Parliament received a report from the Legislation Review Committee regarding the Vexatious Proceedings Act 2008. Extensive consultation occurred with all key legal stakeholders, including the Chief Justice of New South Wales, the Chief Judge of the Land and Environment Court and the President of the NSW Civil and Administrative Tribunal. The recommendations contained in the report have broad stakeholder support for inclusion in the bill before the House.

The bill is of great public importance. Whenever a vexatious litigant appears before a court they waste a valuable public resource, the court system and access to it. When the processes of the court are hampered by a vexatious litigant the resources are stretched and taxpayers foot the additional cost. Not only does it affect the court involved, but it wastes the resources of the opponents in the vexatious proceedings. An indirect impact is the delay experienced by other litigants who would otherwise be able to utilise the court time. There is a public interest in limiting access to civil justice for vexatious litigants.

This bill, and the legislation which proceeds it, contains a number of protections. Any vexatious litigant can apply to have the order varied or revoked. The orders only apply to civil proceedings; they do not apply to criminal proceedings or bail applications. These are very important protections. Schedule 1 [1] of the bill clarifies the meaning of "proceedings" in clause 4 of the Act. When determining whether to make a vexatious proceedings order against a particular litigant, an authorised court can consider both the civil and criminal proceedings that the litigant has previously instituted or conducted. This amendment allows consideration by the court of the litigant's history in civil and criminal proceedings.

The clause of the schedule that I refer to also clarifies that all interlocutory and procedural applications as well as final proceedings in any civil proceedings are contained within the definition of "proceedings". Schedule 1 [2] of the bill makes it clear that, when considering whether it is satisfied that a particular litigant has frequently instituted or conducted vexatious proceedings for the purpose of determining whether to make a vexatious proceedings order, an authorised court should consider the objective effect of the previous proceedings the litigant has instituted or conducted and not only the subjective intent of the litigant in those proceedings.

Schedule 1 [2] amends section 6 (d) of the Act which, in its current form, has been identified by courts and other key stakeholders as being ambiguous and problematic. Schedule 1 [2] amends section 6 (d) in the way that "vexatious proceedings" is defined to include proceedings conducted in a way that "causes embarrassment" or that "causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive". This is important because proving somebody's state of mind is always a difficult problem in any court proceedings. It is much easier to look at the objective effect and it is much more consistent with balancing the public interests involved in any application when declaring a person a vexatious litigant. Schedule 1 [4] of the bill clarifies the operation of vexatious proceeding orders in respect of which applications are prohibited. This will ensure that litigants subject to vexatious proceeding orders can still access courts for criminal proceedings or bail applications.

Another important aspect of the bill is that it makes it clear that, contrary to the effect of section 91 of the Evidence Act, when hearing an application to declare a litigant vexatious courts may have regard to all previous orders of other Australian courts and tribunals. The court hearing the application does not need to determine on the evidence of those earlier proceedings whether in fact the litigant was vexatious. They can rely on the effect of the previous orders that they have been found to be vexatious for the purposes of taking those previous proceedings into account. That is an important practical matter that is included in the bill. I commend the bill to the House and commend the Attorney General for his fine work.