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  • Writer's pictureGeoff Harrison

Vexatious Proceedings


Vexatious Litigant, Vexatious Proceedings Order, Criminal Lawyer, Criminal Barrister, Criminal Solicitor

Published by Geoff Harrison | 25 November 2023


An authorised court may make a Vexatious Proceedings Order under the Vexatious Proceedings Act 2008 ('the Act') if satisfied:


(a) the person has frequently instituted or conducted vexatious proceedings in Australia, or


(b) the person, acting in concert with a person who is subject to a vexatious proceedings order or who is referred to in paragraph (a), has instituted or conducted vexatious proceedings in Australia.


The consequences of a Vexatious Proceedings Order being made is that an applicant must apply to the appropriate authorised court (s12 of the Act) for leave of the court to institute proceedings as per s14(2) of the Act.


Other Sources:

Cases:



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Extracted Legislation:


VEXATIOUS PROCEEDINGS ACT 2008 - SECT 6

Meaning of "vexatious proceedings"


In this Act,

"vexatious proceedings" includes:


(a) proceedings that are an abuse of the process of a court or tribunal, and

(b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and

(c) proceedings instituted or pursued without reasonable ground, and

(d) 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.



VEXATIOUS PROCEEDINGS ACT 2008 - SECT 8

Making of vexatious proceedings order


(1) When orders may be made An authorised court may make an order under this section (a

"vexatious proceedings order" ) in relation to a person if the court is satisfied that:

(a) the person has frequently instituted or conducted vexatious proceedings in Australia, or

(b) the person, acting in concert with a person who is subject to a vexatious proceedings order or who is referred to in paragraph (a), has instituted or conducted vexatious proceedings in Australia.


(2) For the purposes of subsection (1), an authorised court may have regard to:

(a) proceedings instituted or conducted in any Australian court or tribunal (including proceedings instituted or conducted before the commencement of this section), and

(b) orders made by any Australian court or tribunal (including orders made before the commencement of this section), and

(c) evidence of the decision, or a finding of fact, of any Australian court or tribunal hearing such proceedings or making such orders, even if that evidence would otherwise not be admissible by virtue of section 91 of the Evidence Act 1995.


(3) An authorised court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.


(4) Orders may be made on court's own motion or on application An authorised court may make a vexatious proceedings order of its own motion or on the application of any of the following persons:

(a) the Attorney General,

(b) the Solicitor General,

(c) the appropriate registrar for the court,

(d) a person against or in relation to whom another person has instituted or conducted vexatious proceedings,

(e) a person who, in the opinion of the court, has a sufficient interest in the matter.


(5) An application for a vexatious proceedings order may be made by a person referred to in subsection (4) (e) only with the leave of the authorised court.


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


(7) Orders that may be made by Supreme Court The Supreme Court may make any one or more of the following vexatious proceedings orders in relation to a person:

(a) an order staying all or part of any proceedings in New South Wales already instituted by the person,

(b) an order prohibiting the person from instituting proceedings in New South Wales,

(c) any other order that the Court considers appropriate in relation to the person.


(8) Orders that may be made by Land and Environment Court The Land and Environment Court may make any one or more of the following vexatious proceedings orders in relation to a person:

(a) an order staying all or part of any proceedings in the Court already instituted by the person,

(b) an order prohibiting the person from instituting proceedings in the Court,

(c) any other order that the Court considers appropriate in relation to proceedings by the person in the Court.


(9) A vexatious proceedings order does not stay, or prohibit a person from instituting or conducting, any criminal proceedings that are taken by the person in connection with or incidental to criminal proceedings against the person, except as expressly specified in the order.


(10) A vexatious proceedings order does not stay, or prohibit a person from making, a bail application (within the meaning of the Bail Act 2013 ).

Note : Section 73 of the Bail Act 2013 provides that a court may refuse to hear a bail application if satisfied that the application is frivolous or vexatious, is without substance or otherwise has no reasonable prospect of success.


VEXATIOUS PROCEEDINGS ACT 2008 - SECT 12

Appropriate authorised courts for granting leave


(1) For the purposes of this Part, an

"appropriate authorised court" in relation to the granting of leave to institute proceedings prohibited by a vexatious proceedings order is:

(a) the authorised court that made the vexatious proceedings order, and

(b) in the case of a vexatious proceedings order made by the Supreme Court that operates to prohibit proceedings being instituted in the Land and Environment Court--the Land and Environment Court, and

(c) in the case of a vexatious proceedings order made by the Supreme Court that operates to prohibit proceedings being instituted in the Industrial Relations Commission--the Supreme Court.


(2) On and from the abolition of the Industrial Court, the

"appropriate authorised court" in relation to the granting of leave to institute proceedings prohibited by a vexatious proceedings order of the Industrial Court is the Supreme Court.



VEXATIOUS PROCEEDINGS ACT 2008 - SECT 13

Contravention of vexatious proceedings order prohibiting institution of proceedings


(1) If an authorised court makes a vexatious proceedings order prohibiting a person from instituting proceedings:

(a) the person may not institute proceedings of the kind to which the order relates without the leave of an appropriate authorised court under section 16, and

(b) another person may not, acting in concert with the person, institute proceedings without the leave of an appropriate authorised court under section 16.


(2) If proceedings are instituted in contravention of subsection (1), the proceedings are stayed until they are dismissed (or taken to be dismissed) under this section.


(3) Any proceedings that are stayed by subsection (2) are taken to be dismissed by the court or tribunal in which they were instituted on the expiry of the period of 28 days after the proceedings were first instituted, unless the proceedings are sooner dismissed under subsection (4).


(4) Without limiting subsection (2) or (3), the authorised court, or the court or tribunal in which the proceedings are instituted, may make:

(a) an order declaring that proceedings are proceedings to which subsections (2) and (3) apply, and

(b) an order dismissing the proceedings before the expiry of the period referred to in subsection (3), and

(c) any other order in relation to the proceedings that it considers appropriate, including an order for costs.


(5) An authorised court, or the court or tribunal in which the proceedings are instituted, may make an order under subsection (4) of its own motion or on the application of a person referred to in section 8 (4).


(6) An application may be made by a person referred to in section 8 (4) (e) only with the leave of the authorised court or the court or tribunal in which the proceedings are instituted.


VEXATIOUS PROCEEDINGS ACT 2008 - SECT 14

Application for leave to institute proceedings


(1) This section applies to a person (

"the applicant" ) who is:

(a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or

(b) acting in concert with another person who is subject to an order referred to in paragraph (a).


(2) The applicant may apply to an appropriate authorised court for leave to institute proceedings that the order would otherwise prohibit the person from instituting.


(3) The applicant must file an affidavit with the application that:

(a) lists all occasions on which the applicant has applied for leave:

(i) under this section, or

(ii) before the commencement of this section--as required by an order under section 70 of the Land and Environment Court Act 1979 or section 84 of the Supreme Court Act 1970 , and

(b) lists all other proceedings the applicant has instituted in Australia, including proceedings instituted before the commencement of this section, and

(c) discloses all facts material to the application, whether supporting or adverse to the application, that are known to the applicant.


(4) The applicant must not serve a copy of the application or affidavit on any person unless:

(a) an order is made under section 16 (1) (a), and

(b) the copy is served in accordance with the order.


(4A) An authorised court may decline to consider an application made under this section if the court is not satisfied that the application is materially different from an earlier application under this section that was dismissed under section 15 (1) (b) or (c).


(5) An appropriate authorised court may dispose of the application by:

(a) dismissing the application under section 15, or

(b) granting the application under section 16.


(6) Despite any other Act or law, the applicant may not appeal from a decision disposing of the application.


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