sec.102CApplication for dismissal of frivolous or vexatious complaints

### sec.102C Application for dismissal of frivolous or vexatious complaints At any time before evidence is led as to the facts of a charge contained in a private complaint the defendant may make application for an order of a magistrate that the complaint be dismissed on the ground that it is— an abuse of process; or frivolous; or vexatious. Such application may be made orally to the magistrate before whom is the matter of the complaint, or in writing filed with the clerk of the court at the place where the complaint is filed. Upon receipt of such an application the clerk of the court shall refer the same to a magistrate at the place where the application is filed or at the nearest place at which a magistrate attends and shall inform the complainant and the defendant of the place and time appointed for hearing the matter of the application, by advice signed by the clerk and given to each of them or sent by post to the address of each of them last known to the clerk. Where an application is made orally under subsection (1A) in the absence of the complainant, the clerk of the court at the place where the application is made shall inform the complainant of the place and time appointed for hearing the matter of the application by advice signed by the clerk of the court and given to the complainant or sent by post to the complainant at the complainant’s address last known to the clerk. Where an application under subsection (1) is made the complainant shall be required to give security, in such manner and in such amount as the magistrate to whom the application is made or referred may order, that the complainant will pay to the defendant such costs incurred by the defendant on the application as the magistrate who determines the matter of the application may order the complainant to pay. If a complainant ordered to give security for costs does not comply with the order within the time specified therein or, if no time is specified, within a reasonable time the magistrate before whom the matter of the application is brought shall order that the complaint to which the application relates be struck out. Upon the hearing of an application made under subsection (1) — the matter shall be heard in camera; and the magistrate shall consider all relevant evidence led before the magistrate, and all relevant written material duly exhibited or otherwise produced before the magistrate, and the submissions made before the magistrate by the complainant and the defendant or either of them; and the onus shall be on the defendant to prove on the balance of probabilities the ground on which the application is made. An application made under subsection (1) may be heard and disposed of in the absence of the complainant or the defendant. If upon an application made under subsection (1) the magistrate dismisses a private complaint or orders that a private complaint be struck out pursuant to subsection (2A) the magistrate may award to the defendant such costs as to the magistrate seem just and reasonable but, if the magistrate does not dismiss the complaint or order it to be struck out as aforesaid, the magistrate may award to the complainant such costs as to the magistrate seem just. Such costs awarded shall constitute a debt due and owing by the person against whom they are awarded to the person to whom they are awarded and may be recovered by action in a court of competent jurisdiction. s 102C prev s 102C ins 1979 No. 2 s 12 om 1979 No. 43 s 2 pres s 102C ins 1979 No. 43 s 3 amd 2007 No. 37 s 92 sch ; 2010 No. 26 s 82 ; 2010 No. 42 s 120 sch (sec.102C-ssec.1) At any time before evidence is led as to the facts of a charge contained in a private complaint the defendant may make application for an order of a magistrate that the complaint be dismissed on the ground that it is— an abuse of process; or frivolous; or vexatious. (sec.102C-ssec.1A) Such application may be made orally to the magistrate before whom is the matter of the complaint, or in writing filed with the clerk of the court at the place where the complaint is filed. (sec.102C-ssec.1B) Upon receipt of such an application the clerk of the court shall refer the same to a magistrate at the place where the application is filed or at the nearest place at which a magistrate attends and shall inform the complainant and the defendant of the place and time appointed for hearing the matter of the application, by advice signed by the clerk and given to each of them or sent by post to the address of each of them last known to the clerk. (sec.102C-ssec.1C) Where an application is made orally under subsection (1A) in the absence of the complainant, the clerk of the court at the place where the application is made shall inform the complainant of the place and time appointed for hearing the matter of the application by advice signed by the clerk of the court and given to the complainant or sent by post to the complainant at the complainant’s address last known to the clerk. (sec.102C-ssec.2) Where an application under subsection (1) is made the complainant shall be required to give security, in such manner and in such amount as the magistrate to whom the application is made or referred may order, that the complainant will pay to the defendant such costs incurred by the defendant on the application as the magistrate who determines the matter of the application may order the complainant to pay. (sec.102C-ssec.2A) If a complainant ordered to give security for costs does not comply with the order within the time specified therein or, if no time is specified, within a reasonable time the magistrate before whom the matter of the application is brought shall order that the complaint to which the application relates be struck out. (sec.102C-ssec.3) Upon the hearing of an application made under subsection (1) — the matter shall be heard in camera; and the magistrate shall consider all relevant evidence led before the magistrate, and all relevant written material duly exhibited or otherwise produced before the magistrate, and the submissions made before the magistrate by the complainant and the defendant or either of them; and the onus shall be on the defendant to prove on the balance of probabilities the ground on which the application is made. (sec.102C-ssec.4) An application made under subsection (1) may be heard and disposed of in the absence of the complainant or the defendant. (sec.102C-ssec.5) If upon an application made under subsection (1) the magistrate dismisses a private complaint or orders that a private complaint be struck out pursuant to subsection (2A) the magistrate may award to the defendant such costs as to the magistrate seem just and reasonable but, if the magistrate does not dismiss the complaint or order it to be struck out as aforesaid, the magistrate may award to the complainant such costs as to the magistrate seem just. (sec.102C-ssec.6) Such costs awarded shall constitute a debt due and owing by the person against whom they are awarded to the person to whom they are awarded and may be recovered by action in a court of competent jurisdiction. - (a) an abuse of process; or - (b) frivolous; or - (c) vexatious. - (a) the matter shall be heard in camera; and - (b) the magistrate shall consider all relevant evidence led before the magistrate, and all relevant written material duly exhibited or otherwise produced before the magistrate, and the submissions made before the magistrate by the complainant and the defendant or either of them; and - (c) the onus shall be on the defendant to prove on the balance of probabilities the ground on which the application is made.