2nd Reading Speech

13 February 2018

The Hon. ADAM SEARLE ( 15:41 ): I lead for the Opposition in debate on the Vexatious Proceedings Amendment (Statutory Review) Bill 2017. The Opposition does not oppose the bill. The object of the bill is to amend the Vexatious Proceedings Act to implement recommendations that come from a statutory review of the legislation. The review report is dated May 2017. Section 22 of the principal Act required the Attorney General to review the Act as soon as possible after five years from the date of assent of the legislation. Assent was given on 1 December 2008; the review commenced in April 2014.

The following are the amendments implemented by the bill. The bill makes it clear that references to proceedings include civil proceedings before a tribunal and any interlocutory applications or proceedings or procedural applications incidental to or connected with such proceedings. Clarification is also provided that a court, in deciding whether to make a vexatious proceedings order, is to have regard to the effect that the relevant person’s conduct had on earlier proceedings and not only their intent, which the Parliamentary Secretary addressed. The court may also have regard to evidence of decisions or findings of fact of another Australian court or tribunal, which seems eminently sensible.

The bill also contains a provision that unless the vexatious order expressly states otherwise the order prohibits the making of interlocutory and procedural applications within civil proceedings but, importantly, does not prevent someone from making applications or conducting criminal proceedings that have been brought against them, or from making bail applications. That distinction is very important given the quite punitive nature of criminal proceedings. The court may also decline to consider a vexatious litigant’s application for leave to institute proceedings otherwise prohibited by the order if the application is not materially different from an earlier unsuccessful application.

The bill also makes clear that if a court considers an application by someone subject to an order for leave to institute otherwise prohibited proceedings the court is not required to hold an oral hearing before dismissing the application. Finally, the bill also provides that, unless otherwise expressly prohibited by the order granting leave, the granted leave extends to allow the person to make interlocutory or procedural applications within those proceedings. It is difficult to find any cogent reasons against any of these proposals. Vexatious litigant legislation is a necessary part of our legal system. It imposes severe sanctions upon those who bring proceedings repeatedly with no reasonable case. It is a necessary part of our structure but, as is appropriate for such a sanction, it is—and should be—used sparingly.

The statutory review records that since 2008, with the introduction of the principal Act, the Supreme Court has made 23 vexatious proceedings orders and the Land and Environment Court has made two. Fourteen of the Supreme Court orders were at the request of the Attorney General, seven were applications by private individuals or organisations, and two were own motions. The legislation arose from a national reform process and tried to balance a person’s right of access to the courts with the need to restrict and manage those litigants who truly can be called vexatious. As the report of the statutory review put it:

The Act seeks to strike a balance between ensuring superior courts of record in New South Wales (NSW) have suitable powers to control vexatious litigants, while also preserving the fundamental right of citizens to approach the courts to seek justice in accordance with law, and to defend themselves in criminal proceedings.

The review made nine recommendations. It is of significance that submissions to the review were generally supportive of the Act. It is interesting to note that the NSW Civil and Administrative Tribunal suggested to the review that it be allowed to issue vexatious proceedings orders in relation to NCAT proceedings. Presently, only the Supreme Court and the Land and Environment Court—the only two remaining superior courts of record—can make these orders. Of course, the Supreme Court can make broad orders not restricted to proceedings in that court. The review recommends against altering the present position. Given the severity of the nature of these orders, a cautious approach to their use and to expanding the range of tribunals that can make such orders is advisable. For these reasons the Opposition does not oppose the legislation.